Patrick Lazaro v Tanzania Forest Agency Services Another Civil Case No 2 of 2023

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CIVIL CASE NO. 2 OF 2023 PATRICK LAZARO .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS TANZANIA FOREST SERVICES AGENCY AND ANOTHER .............................. RESPONDENT / DEFENDANT JUDGMENT P. R. KAHYOZA, J, The Plaintiff herein, Patrick Lazaro, is suing the defendants jointly and severally for a number of reliefs as set out in the plaint. The defendants sued are the Tanzania Forests Service Agency (TFS), the first Defendant, and the Attorney General, the second defendant. The reliefs sought are pleaded under paragraphs four and nineteen of the plaint. They can conveniently be reproduced as follows: 1. The declaratory judgement and decree that the act of the 1st Defendant force of taking plaintiff’s 70 sacks of harvested grains and other properties was illegal and unlawful. 2. The Defendant be ordered to pay a total amount of Tanzanian shillings Seventeen million seven hundred and twenty-seven thousand only (17, 727 ,000/-) as the compensation. 3. The Defendants to be ordered to pay a total of Twenty million only (20,000,000/-) as the general damages. 4. The cost of this suit be paid by the defendants. 5. And any other reliefs this honourable court deem fit and just to grant. The facts constituting the case and as gathered from the pleadings can be succinctly stated as follows. It is alleged by the plaintiff that on 21st June, 2022 the officers of the first defendant illegally and unlawfully seized his properties. These properties include seventy sacks (bags) of grains/cereals, a bicycle. A mobile phone, an axe, 4 canvases, 4plows, one bucket of corn flour, 3 shovels, 3 bowls, 1 bush knife, 9 water drums, a 10W solar panel and one hat. On the other hand, the defendants denied the plaintiff’s claim. They averred that the plaintiff encroached onto the protected land, that is the forest reserve and carried out farming illegally. As such the first defendant was justified in impounding and confiscating the grains found in the possession of the plaintiff. The defendants, however, termed the rest of the claims as baseless and unfounded. Page. 1 Following this contest, both sides brought witnesses to substantiate their cases/stances. In addition, the counsel for defendants also filed final submissions. The submissions were elaborate. I commend them for their industry. Then the following issues were framed: 1. Who is the lawful owner of the plot of land (farm) located at Kumzoya, Mvinza Village in Kasulu District. 2. Whether the Defendants confiscated the plaintiff’s properties and whether such confiscation was lawful. 3. Whether the Plaintiff is entitled to any compensation. 4. To what reliefs are parties entitled. As regards the first issue, the court is invited to determine as to who is the owner of the suit land the plaintiff and the first defendant. It is pleaded under paragraph five of the plaint that the plaintiff is a lawful owner of the land which is found in Kumzoya area within Mvinza Village, in Kasulu District, Kigoma region. It is further pleaded under the same paragraph that the plaintiff has been using the same land for cultivating seasonal and short-term crops such as maize, beans and millet for the purpose of providing for his family. But in his reply to the Written Statement of Defence, the Plaintiff apart from reiterating that he is a lawful owner of the land in question, he also came up with something new by stating that the said land is located at Kalinzi in Kitagata. Generally speaking, the Plaintiff never led evidence to show that he is a lawful owner of the land in question. In his evidence in chief, the plaintiff told the court that the land was never allocated to him by any authority, but he just grabbed it and started cultivating crops. It can therefore be safely concluded that the plaintiff has never been a lawful owner of the said land as alleged. This position also finds support from the plaintiff’s account of what happened on 21st June, 2022. The plaintiff told the court that on the material day he was in the fields but as soon as he saw the officers of the first defendant approach him, he run away. He is also recorded telling the court that the said officers pursued him but did not apprehend him. This in my view cements the conclusion that the plaintiff was not a lawful owner of the said land, that is why he run away upon seeing the officers of the first defendant. It does not appeal to mind that if at all the plaintiff was the lawful owner of the land, he would run away upon seeing the officers of the first Defendant. On the other hand, the testimony of DW1, Deograsian Kavishe, DW2, Juma Shomari Kungugu and DW3, Abudius Boniphace Rubatu point to one irresistible conclusion that the land in question belonged to the first defendant. DW3 clearly told the court that initially Makere South Forest Reserve had the area of 99,682.2 hectors. But because of constant encroachment by people from neighbouring villages and elsewhere, the reserve’s boundaries were re-visited and re-demarcated. Consequently, some part of the forest reserve land was set aside for agricultural activities for villages bordering the reserve. Its new size was now 65,178 hectors from the original size of 99,682.2 hectors as per the Government Notice No. 718 of 2018. To support this contention, DW3 tendered two maps, exhibit DE3 collectively. These two maps show the current area of the forest reserve, which is 65,178 hectors. They also show the current boundaries, the village bordering the reserve as well as the area of 10 hectors that was set aside for agricultural activities from the reserve. In addition to this evidence, we have exhibit DE1. This is a report prepared by the Commission for Human Rights and Good Governance (CHRGG). The report was in response to the complaints lodged by the people of Mvinza Village. It was against the District Commissioner for Kasulu District and the Second Defendant. One of the major Page. 2 complait was that the first Defendant had illegally forced out villagers from their land. The finding of the Commission on this issue is found at page 22 of the report. The same is reproduced here below: “Kwa mazingira haya, eneo la ekari 4,897.72 ambalo wananchi wanadai kuwa lipo ndani ya ardhi ya kijiji cha Mvinza ni mali ya wakala wa Huduma za Hifadhi ya Misitu Tanzania kwa mujibu wa sheria ya matangazo ya Serikali ya Namba 250 na 718 ya mwaka 1956 na mwaka 2018, mtawalia.” Then at page 31 of the report, the Commission concluded in the following words: “THBUB imejiridhisha kuwa eneo lenye mgogoro ni mali ya Wakala wa Huduma za Misitu (TFS) na sio ardhi ya Kijiji kwa mujibu wa Tangazo la Serikali Namba250 la mwaka 1956 na 718 la mwaka 2018”. It is important to note that under paragraphs 6 and 7 of the plaint, the plaintiff pleaded that the first defendant did evil acts to the farmers of Kumzoya in Mvinza Village, including the plaintiff. Such acts are enumerated under paragraph six as being disturbances, chaos, confrontations, holocaust, looting, beatings and other inhuman treatments. It is then added under paragraph seven that due to such acts, the farmers, the plaintiff inclusive, were hesitant to harvest their crops, until they obtained a permit from the District Commissioner for Kasulu District. Such facts clearly implicate the Plaintiff that he was doing farming in the forest reserve as evidenced by the report, exhibit DE1, notwithstanding that the Plaintiff was not among the complainants. Now, with this explanation in place, it is apparent that the area/land in which the plaintiff was cultivating maize, beans and millet is part of the forest reserve, under the supervision of the first defendant. The first issue is therefore answered accordingly. The second issue addresses two questions that need to be considered. These are: 1. Whether the Defendants (first defendant) confiscated the plaintiff’s properties, and, 2. Whether such confiscation was lawful. As to whether the first defendant confiscated the plaintiff’s properties, the pleadings partly provide an answer to this question. Under paragraph two of the Written statement of defence, the first defendant admits to have confiscated bags of harvested grains, property of the plaintiff. Probably the sole wrangle as regards the grains, is the amount confiscated. It is my view that the exact figure of the bags of grains confiscated can be gathered from the pleadings as well as the parties’ evidence tendered in court. Under paragraph 5 of the plaint, the plaintiff pleaded that he lawfully owns a farm land at Kumzoya area within Mvinza Village in Kasulu District. He further stated under that same paragraph that it is in that area where he was cultivating maize, beans and millet. Under paragraph 7 of the plaint, it is pleaded that the plaintiff together with other farmers harvested their crops at the beginning of June, 2022. For reasons that I think are best known to the plaintiff, this story is suddenly abandoned. Under paragraph 8, it is pleaded by the plaintiff that on 21st June, 2022, while in the car with registration No. T.523 APH going to collect his harvested crops at Kalinzi area, he was stopped by the officers of the first Defendant. They did beat him up and Page. 3 ordered him to carry his 70 bags of grains. But again, the same plaintiff states under paragraph 3 of the reply to the Written Statement of Defence that he is a lawful owner of the land located at Kalinzi, Kitagata where he was cultivating seasonal crops. He also adds under paragraphs 6 and 7 of the said reply that he was severely beaten up by the officers of the first defendant, after which he was forced to show them where he was keeping his grains. But yet in another turn of events, the plaintiff told the court both in his evidence in chief and during cross cross examination that on 21/06/2024 he was at his shamba at at Kumzoya in Mvinza village when he saw the officers of the first defendant coming towards his direction, and that he decided to run away. When cross examined by Mr. Kalenda, Senior State Attorney as to whether he had been assaulted, he categorically told the court that he was never assaulted by the officers of the first defendant. Now, from the above account, the following is discernible. One, that the plaintiff owned a shamba at Kumzoya in Mvinza Village within Kasulu District, where he used to cultivate various crops. Two, that the plaintiff owned a shamba at Kalinzi area (going by Exhibit DE2, Kalinzi area is in Kitagata Village), and this is where the officers of the second defendant seized and confiscated his properties including grains. Three, that the plaintiff was severely assaulted by the officers of the first defendant; and four, that the plaintiff was never assaulted by the officers of the first defendant. Looking at the four points highlighted above, it is apparent that the plaintiff is not certain as to where he was doing farming, between Kumzoya area in Mvinza Village and Kalinzi area in Kitagata Village. It is important to note that by virtue of exhibit DE2 (the maps), there are hundreds of kilometres between these two villages. But whatever it is, the implication and conclusion is that the plaintiff’s account of what transpired cannot be trusted because of the apparent and serious contradictions both in his pleadings and in his evidence in court. This means, even his allegation that his 70 bags of cereals and other properties were confiscated cannot be trusted because he does not know whether they were seized at Kalinzi in Kitagata Village or at Kumzoya in Mvinza Village. This leaves me with only one option of believing the story of the defendants that they seized only three bags of grains at Kumzoya. This finding is supported by the testimonies of both DW1, Deograsian Polycarp Kavishe and DW2, Juma Shomari Kungugu. From the foregoing, I would answer sub issue one of the second issue in the affirmative that indeed the first defendant confiscated the properties of the plaintiff, but the confiscation is limited only to three bags of maize. As for the rest of the properties including extra bags of grains, there is no evidence to establish their confiscation. The second sub issue on this area is whether such confiscation was lawful. The plaintiff has maintained all along that he lawfully cultivated the crops, and as such confiscation of his properties by the first defendant was in no way justified. But on their part, the Defendants maintain that since the plaintiff cultivated crops in protected land, that is, in a forest reserve, the defendants were justified in seizing the plaintiff’s crops. DW2 Juma Shomari Kungugu clearly told the court that encroaching or trespassing onto the forest reserve was punishable under the law. In addition, both DW1Deograsian Kavishe and DW3 Abudius Boniphace Rubatu told the court that immediately after the publication of the Government Notice, No. 718 of 2018, the boundaries of the Makete South Forest Reserve were re-demarcated. They further told the court that apart from natural boundaries such as rivers, there Page. 4 were also put beacons (six feet beacons) and sign boards to ensure that boundaries were clear. To that end, both DW1 and DW3 clearly told the court that whoever encroached on the forest reserve was doing so at the peril of being punished, as it happened to the plaintiff. Well, I think I do not have to labour much on this issue. DW2 has clearly stated that any encroachment on the forest reserve is punishable under the law. The law, that is, the Forest Act, Act No. 7 of 2002 as amended restricts such activities, as cultivation. Section 26v of the Act provides; S. 26. On and after the coming into force of a declaration of a national or local authority forest reserve, no person, other than an existing right-holder exercising an existing right within such forest reserve in respect of which the existing right has been determined shall do any of the following acts in any such forest reserve unless and until such a person has been granted a concession or a licence or a permit in accordance with the provisions of this Act- (a) to (g) not applicable (h) clear, cultivate, or break up for cultivation or any other purpose, any land; The wording of the provision cited above is clear. Cultivation in a forest reserve is prohibited. Now, since the plaintiff acted contrary to the express terms of the above provision, it was proper in my humble view for the first defendant to seize and impound his crops. He could not be left to go free. It is for these reasons that I answer sub issue two of the second issue that confiscation of the plaintiff’s grains was lawful in the circumstances. The third issue is whether the plaintiff is entitled to any compensation. This issue will not detain me. I have already held that the plaintiff was illegally carrying out cultivation in protected areas, that is, in reserve forest. I have also held that even his crops/grains were legally seized and impounded. It therefore follows just as day follows night that such illegal acts cannot entitle one to compensation. To put it differently, I cannot figure out how should a person be compensated for doing something wrong. In Princess Nadia (1998) Ltd v Remency Shikusiry Tarimo, Civil Appeal No. 242 of 2018 (unreported); the Court of Appeal had an occasion of addressing a somewhat similar situation, and the Court had this to say; “We once again agree with the learned advocate for the respondents that since it was proved that the appellant was a trespasser, she had no right to benefit from her wrongful act. At worst, the appellant assumed the risk arising from her unlawful occupation in the premises. Just as she was not entitled to any notice before eviction, she had no right to claim any compensation from the forceful eviction” Similarly, the plaintiff cannot be entitled to compensation arising from his wrongful deeds. Just to put it briefly, the third issue is answered in the negative, in that the plaintiff is not entitled to compensation at all. With regard to the fourth issue, the court is invited to determine the reliefs the parties are entitled to. The Plaintiff has asked the court that he be compensated in the sum of Tshs.17,727,000/-. By necessary implication, the plaintiff is pleading specific damages. However, specific damages apart from being specifically pleaded, they must also be specifically proved. See Zuberi Augustino vs Anicet Mugabe [1992] T. L. R. 137. In this case the Court of Page. 5 Appeal of Tanzania underscored the importance of specifically pleading and proving special damages. The Court stated; “It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved”. Under paragraphs 6 the plaintiff pleaded that Kumnzoya farmers including the plaintiff were subjected to malicious treatment. He also pleaded under paragraph 8 of the plaint that he was assaulted by the officers of the first Defendant. In addition, the plaintiff also pleaded under paragraph seven of his reply to the Written Statement of Defense that he was severely beaten up by the officers of the first Defendant. He also added that he incurred a lot of costs as he was admitted at Shunga Hospital for four days. However, he did not tender evidence to show that indeed he was admitted at hospital and that probably he incurred costs as result of which he must be compensated. These statements, therefore, remain mere unsubstantiated allegations which cannot attract compensation at all. As for crops, it has been proved that the same were lawfully seized and impounded. As such no compensation can flow out of that. As for the rest of the properties, the Plaintiff has not led evidence to show that such other properties were seized and impounded by the Defendants. It would therefore follow that the Plaintiff cannot be awarded compensation on matters that have not been proved. In such circumstances therefore, the issue of compensation cannot arise. It is even more so by considering the fact that the plaintiff’s claim in relation to all the first three issues has failed. As for the claim of general damages in the sum of Tshs.20,000,000/-; this amount too or part thereof cannot be awarded. This is because the whole claim of the plaintiff has not succeeded. Just in the upshot, and for all the reasons clearly and amply demonstrated above, I find and hold that the plaintiff’s claims against the defendants are not supported by sufficient evidence, and are thus baseless. Consequently, I proceed to dismiss the plaintiff’s suit for the reasons stated. The defendants will have their costs. Right of appeal is duly explained. Page. 6 Dated at KIGOMA ZONE this 12th of November 2024. P. R. KAHYOZA, J JUDGE OF THE HIGH COURT Page. 7