200710418 TZHC Dar es Salaam

lN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO. 86 OF 2006 ·• TANZANIA BIG GAME SAFARIS LTD .......... PLAINTIFF VERSUS AFRICAN BUSH LIMITED ...................... DEFENDANT JUDGMENT Date of final submission March 9, 2007. Date of Judgment 18.4.2007. MJASIRI. J The Plaintiff a limited liability company, is a licensed safari company which has been granted exclusive rights to conduct hunting activities within Selous KS Hunting Block in the Selous Game Reserve by the Director of Wildlife for the 2005 - 2009 period. The Defendant. is a limited liability company and is also a licensed safari company ·which has been granted exclusive rights to conduct hunting activities within Selous U 1 and U2 lt • Hunting Blocks in the Selous Game Reserve by the Director of Wildlife for the 2005 - 2009 period. The Plaintiff has instituted a suit against the Defendant for persistent infringement of the Plaintiffs hunting rights since August 2003. It has been alleged by the Plaintiff that the defendant and its employees and/ or agents and clients have, on various dates from August 2003 to 2005 knowingly and without justifiable cause, without the consent of the Plaintiff, have been persistently infringing the Plaintiff's hunting rights by entering and conducting hunting activities within the Selous KS Hunting Block which has been allocated to the Plaintiff. According to the Plaintiff the known boundaries of the KS Hunting Block are shown on the sector map that was given to the Plaintiff by the Director of Wildlife during the first allocation, Exhibit P 1. The Defendant denied trespassing the Plaintiff's hunting block and/ or infringing the Plaintiff's hunting rights as alleged by the Plaintiff. 2 The Plaintiff is represented by Mawalla Advocate and the Defendant is represented by Lutema Advocate. The following issues were agreed upon by the parties with the approval of the court: 1. Where is the boundary between the Plaintiff and the defendants Hunting Blocks in KS and Ul? 2. Has the Defendant's trespassed on the Plaintiff's Hunting Block KS? 3. Has the Plaintiffsuffered any damages? 4. What reliefs are the parties entitled to? The Plaintiff called three (3) witnesses. PWl who is a Professional hunter employed by the Plaintiff testified to this effect. PWl was employed by the Wildlife Corporation in 1984. He knows where the boundary was between KS and Ul. There was a graded road. The boundary is indicated in 3 the Msolwa sector sketch Map, Exhibit Pl. According to PWl there were marks made by the Wildlife Department. According to PWl the Defendant shifted the sign boards. Complaint letters were sent to the Wildlife Department. Exhibit P2 and P3. The Defendant still continued to hunt on the Plaintiffs hunting block. On cross examination by the Defendant's Counsel PWl stated that he did not know the names of parties from the Defendant's company who invaded the Plaintiff's Hunting Block. With regards to the Lion baits PWl stated that the lion baits did not have any identification mark of the Defendant. PWl testified that he was not in a position to state when the sign posts for the boundaries between KS and U 1 were removed by the Defendant. The boundary was the graded road to Shughuli Falls. On re-examination PWl stated that there was no other demarcation point, just the graded roads and signs. PW2 Benson Kibonde, the chief Warden of the Selous Game Reserve testified that the boundaries of the Hunting 4 • Blocks including KS and Ul are guided by the Nicholson map. This is a sketch map drawn by his predecessor Brian Nicholson on 31/12/1970, Exhibit P6. The owners of the Hunting Blocks were required to familiarise themselves on the details of the said sketch map on the ground. According to the Nicholson's map the two blocks were separated or demarcated by a road. PW2 testified that he was aware of the dispute between the parties and referred to letters of complaint from the Plaintiff. He proposed that the step to be taken to resolve the border issue of KS and U 1 is confirmation of the border on the ground. On cross examination by the Counsel for the Plaintiff, PW2 stated that there could be a problem of interpretation by the two companies. Confusion could have been caused by the new road network. In the past there were very few roads, it was therefore easy and convenient to cite the roads as boundaries. PW2 was of the view that the solution was a visit on the ground. There was such an intent but the Defendant had declined. 5 PW2 further testified that the Nicholson's map is a sketch · map and has .to be taken with caution because the measurement of the road is not on scale. In some areas the sketch map would be misleading if features are not correctly identifiable. According to PW2 there is a move to digitise, so that the boundaries can become permanent. Digitisation would put permanent records. The dispute according to him arises out of confusion and the solution is to go on the ground in order to point out a clear demarcation. PW2 stated that he has never witnessed any trespass. According to him digitization will sort out the ambiguity. Digitisation 1s however costly, and demands time and expertise . . PW3 JAN MORONI the Director and General Manager of the Plaintiff testified that she is responsible for the day to today operations of the Plaintiff Company. Once on a safari PW3 noticed a car with the Defendant's emblem pass by on Block KS. PW3 further testified that in 1999 she noticed that signs were moved and there were sections they could not go through anymore. According to her there have been incidents of bait on lions and buffaloes on a spot they considered theirs. 6 According to PW3 Plaintiffs wrote several letters to the Wildlife department asking the department to resolve the problem. As a result of the encroachment by the defendant, revenue was lost, the allocated quota for the Plaintiff, was not met due to failure to market the Hunting Block. On cross examination by Mr. Lutema Advocate for the Defendant PW3 stated that the failure to market the Block was not a major concern, that is why this was not indicated in the plaint. The greatest concern for the company was the access to the Block by another party. The loss of the client base though not specifically mentioned in the plaint, forms part of the Plaintiffs claim~ PW3 also stated under cross examination that she has no documentary evidence to prove how much the Plaintiff has lost. PW3 also stated that she did not see the baits on the disputed area. She was not in the area (Hunting Block) for several years and when she went again she saw different sign 7 posts, which were of different colours. The last time she visited KS was 1999. According to PW3 details of the car which passed by bearing the Defendant's emblem were not noted. The registration number of the said car was not noted nor were photographs taken. According to PW3, letters of complaint sent to the Wildlife Department were dictated by her husband and signed by the manager. Exhibit P3 relevant. The Defendant called one witness, Frederico Joaquino Vidali, a Director and Shareholder of the Defendant Company. According to DWI the company owns two Hunting Blocks U 1 and U2 and Block U 1 borders KS. A sketch map is being used and it is difficult to put on the ground. The boundaries are being digitised by the Wildlife Corporation but the exercise is not complete yet. DWI testified that he has never set any lion baits on the Plaintiffs block. No complaints were sent to him and he was never given names of the Defendant's employees who had set up lion baits on the Plaintiffs block. 8 On cross examination by the Plaintiffs Advocate DWI stated that he follows the Nicholson sketch map. According to him no Wildlife Officer came to resolve the dispute, and he did not know the exact boundary. With regards to issue No. one ( 1). Counsel for the Defendant in his written submission argued that the Wildlife Corporation did not know the exact boundaries; Exhibit P5 relevant. Exhibit P5 emphasises on the issue of digitisation of the boundaries. The letters of allocation do not have boundary descriptions. The Wildlife Corporation has never been on the ground to point to the parties the exact boundaries. The boundary is to be determined by the Nicholson map which is a sketch map and not very reliable. According to the Counsel for the Defendant it is not clear where the boundary is. With regards to issue No.2 the Defendant'.s argument is that with no clear demarcation, it is not possible to clearly prove trespass. Counsel also submitted that there is no proof 9 that the Defendant is trespassing on the Plaintiff's Block. The Plaintiffs witnesses failed to prove trespass. No details were given of the people setting lion baits on the Plaintiffs Hunting Block nor the registration numbers of the Defendant's vehicles, names and details of Defendant's employees who were alleged to be trespassing, were given in any report. No evidence was given that the Plaintiff called the Game Wardens in respect of the trespass. No arrest was made by the Game Wardens to any employee of the Defendant for trespass. The evidence was therefore heresay. With regards to issue No.3 the Counsel for the defendant submitted that the Plaintiff is not entitled to damages as no trespass has been proven and the Plaintiff has failed to prove any damages. With regards to issue No.4, on the reliefs the parties are entitled to the counsel for the Defendant submitted that the Plaintiff is not entitled to any relief and asked the court to dismiss the Plaintiffs case with costs. With regards to issue Number One (1) Counsel for the Plaintiff in his submission strongly argued that the boundary 10 between KS and Ul hunting blocks has never been disputed by any of the parties. The boundary remains as set out in the Brian Nicholson's map which had been drawn in 1970. Both parties were supposed to familiarise themselves with the boundary on the ground. According to Counsel for the Plaintiff PWl and PW2 both confirmed that the boundary between the Hunting Blocks is a road to Shughuli Falls. The said Road has always been there and is known to the parties. The Defendant did not cooperate with the Wildlife officials. Counsel for the Plaintiff, also submitted that the Defendant was bound by his pleadings and in paragraph 3 of the Written Statement of Defence the Defendant stated on follows: " The Defendant further insists hat it has always operated within the confines of the boundary of its hunting block as shown by the Wildlife Department citing. 11 Pushpa d/ o Raojibhai M. Patel V The Fleet Transport Company Limited 1960 EA 1025 cited. Counsel for the Plaintiff also cited commercial Case No.114 of 2002 (unreported), Kilombero North Safaris Limited versus Wild Foot Prints Limited where it was stated 11 . '\. that "official maps approved by the government are documents which should be presumed correct. Counsel also made reference to the correspondence between the Plaintiff and the Defendant and the Wildlife Department. With regards to issue No.2 the Counsel for the Plaintiff submitted that the trespasser's knowledge is not necessary to prove trespass. Counsel citing W. Tony, a case book on Tort, 8th Edition Sweet and Maxwell, 1996 at page 91 stated that any direct invasion of a protected right by a positive act is wrongful and actionable. According to Counsel for the Plaintiff, the Defendant had been and continued trespassing on the Plaintiffs Hunting Block, by erecting lion baits, allowing hunting teams to enter and conducting hunting activities and erecting sign posts. Counsel also argued that the evidence of PW2 and PW3 was not hearsay as alleged and the case of Magoti Matofali V R 1953 20 EACA 232 is not relevant to this case; being a criminal case the standard of proof is beyond reasonable and not on the balance of probability. Counsel cited the Wild Life Conservation act, (Act No. 12 of 1974). Under the said act once an area is approved to be a hunting area the Wildlife 12 Conservation (Tourist Hunting Regulations of 2000 (as amended) apply. Regulations 13(2) provides as under: " no person other than the holder of a hunting block allocation certificate for a given block shall be allowed to enter into the allocated hunting block to conduct tourist hunting." According to the evidence of PWl, PW2 and PW3 it has been proved on the balance of probability that the Defendant has been trespassing on the hunting rights of the Plaintiff. With regards to issue No.3 Counsel for the Plaintiff submitted that the legal position is that the Plaintiff can sue even though he has suffered no damage. Counsel cited the case of Joshua Sh#a Kisendi V Paulo Katoto and Another 1986 TLR 111. The Plaintiff is therefore entitled to general damages. With regards to issue No.4 Counsel submitted that the Plaintiff is entitled to an order for a permanent injunction. 13 According to Black's Law dictionary Eighth Edition trespass is defined as follows: " An unlawful act committed against the person or property of another especially wrongful entry on another's real property. At common law, a legal action ·for injuries resulting from an unlawful act ofthis kind." Trespass to land is defined as under: " A person's unlawful entry on another's land that is visibly enclosed. This tort consists of doing any of the following without lawful justification: 1. entering upon land in the possession ofanother 2. remaining on the land or 3. placing or projecting any object upon it" At common law, an action to recover damages resulting from another's unlawful entry on one's land that is visibly endorsed. In the Law of Torts Butterworth's Common Law Series 2002 edited by Andrew Grubb "Trespass" is defined as follows: 14 •. " The tort of trespass to land is constituted by the commission of an intentional act which results in the immediate and direct entry onto land in the possession of another without justification. The gist of the tort is the entry upon land and any entry, no matter how trivial and irrespective of whether any damage is caused will amount to a trespass unless justified. " According to Blacks Law Dictionary (supra) a trespasser is defined as follows: "One who commits a trespass, one who intentionally and without consent or privilege enters another's property. " In view of the above definitions, a hunting block can be trespassed upon. In order for one to commit trespass, the act has to be intentional. In the present case no evidence of trespass by the Defendant has been established. PWl, PW2 and PW3 have not witnessed any trespass to the Plaintiff's Hunting Block. The Defendant, its employees and/ or agents were not seen on the premises. PW3 has not been on the hunting block since 1999, and most of the account given in testimony was not witnessed by her. 15 r )_ ' . No concrete evidence was brought by PW3 on the motor vehicle bearing the Defendant's emblem. Neither the description of the motor vehicle nor the registration number was given. It is a requirement under the law that in civil proceedings the Plaintiff has to prove its case on the balance of probability. Section 111 of the Evidence Act 196 7 provides as under: " The burden of proof in a suit proceedings lies on that person who would fail if no evidence at all were given on either side. " Section 112 of the Evidence Act provides as under: " The burden ofproof as to any particular fact lies on that person who wishes the court to believe its existence unless it is provided by any law that the proof of that fact lies on any particular person. " Section 115 provides as under: 16 r- j_ "In civil proceedings when any act is especially within the ... knowledge of any person the burden of proving the fact is upon him." With regards to issue Number 1, taking the evidence of PW2 into consideration it cannot be said with exact precision where the boundary is. PW2 authoritatively stated that the Brian Nicholson map is a sketch map and could be misleading if features are not correctly identifiable. In view of the prevailing position outlined above and in the absence of concrete evidence that the Defendant was trespassing on Block KS, issue number two (2) is answered in the negative. In view of the findings in issue No.2, issue number three (3) automatically fails. Trespass was not established. The Plaintiff has not furnished any evidence on damages suffered. The award of damages therefore depended on the court findings on issue No.2. With regards to Issue No.4, the court is not in a position to provide further or any other reliefs to the parties. I would like to mention in passing that the border issue in respect of 17 r Hunting Blocks KS and Ul can be resolved by the Wildlife Corporation. PW2 in his testimony invited both the Plaintiff and the Defendant to meet the Wildlife officials. It is the finding of this court that from the evidence adduced in court. The Plaintiff has failed to prove his claim against the Defendant on the balance of probability. The Plaintiff failed to prove that the Defendant has been trespassing on the Defendant's Hunting Block. The Plaintiffs case has failed and is therefore dismissed with costs. It is so ordered. Sauda Mjasiri Judge April 18, 2007 Delivered in Chambers this 18th day of April 2007 in the presence of Mdamu Advocate holding brief for Mr. Lutema . Advocate and in the absence of Mr.Mawalla Advocate .. Sauda Mjasiri Judge April 18, 2007 3,945 - words 18 i