venance mwakibinga vs chief executive officer tanzania forest service agency another 2016 tzhc 2281 24 june 2016

IM THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT PAR ES SALAAM (ORIGINAL JURISDICTION) CIVIL CASE NO. 88 OF 2014 VENANCE MWAKIBINGA............................................... PLAINTIFF VERSUS 1. CHIEF EXECUTIVE OFFICER, TANZANIA FOREST SERVICE AGENCY.................1st DEFENDANT 2. ATTORNEY GENERAL.......................................... 2nd DEFENDANT Date of Last Order: 24/05/2016 Date of Judgment: 24/06/2016 JUDGMENT FELESHL J,: The plaintiff sues the defendants for release of 867 pieces of timber confiscated by officials of the 1st defendant at Mlimba Railway Station in Kilombero District on 26/08/2011 or payment of Tshs. 39,015,000/= being the principal amount, loss of profit amounting to Tshs. 768,000,000/=, general damages at the tune of Tshs. 50,000,000/=, interest at commercial rate of 32% from the date of institution of the suit to the date of Judgment and interest at Court rate of 12% from the date of delivery of Judgment to the date of full payment. He also prayed for costs of the suit. In reply, basically, the defendants admit confiscation of the said pieces of timber on that material date but for reasons that the said timbers were harvested using a chainsaw contrary to Government Notice No. 26 of 2006 adding that the timbers on Transit Pass for.forest produce No. 0349652 did not match the actual seized pieces and that the said Transit Page 1 of 13 Pass was already used. Besides, the said Transit Pass No. 0349652 'fas issued to one Azizi Jafari Masoud for transportation of a total of 800 pieces of timber measuring 15.638 cubic metres whereas the confiscated timber produce on 26/08/2011 was in respect of 867 pieces of timber measuring 70.405 cubic metres and were under the custody of one Philipo Kamanda. Three (3) issues were framed namely:- 1 1. Whether the plaintiff is the lawful owner of the confiscated timber. 2. Whether the confiscation of the timber by the 1st defendant was lawful. 3. To what reliefs are the parties entitled to. . I To establish his claims, the plaintiff paraded three (3) witnesses, that i is, Venance Mwakibinga as PW1, PW2 Azizi Jafari Masoud and PW3 Lucas . Tumaini Mlele whereas the defendants paraded two (2) witnesses, that iis, DW1 Valentina Emilian Komba and DW2 Selewin Stephano Regie. The plaintiff engaged the services of Kitare and Company Advocates whereas the defendants were represented by Ms Lilian Makange and Mr. Benson Hoseah, learned State Attorneys of the Office of the Attorney General's Chambers. PW1 Venance Mwakibinga testified that, on 26/08/2011 while in Dar es Salaam he was informed that his 867 pieces of timber were seized by the PCCB and Tanzania Forest Service Agency at Mlimba Railway Station in Kilombero District, Morogoro region. A letter authored by the Chief Executive Officer Wakala wa Huduma za Misitu addressed to the plaintiff dated 09/U/2011 was admitted and marked Exhibit "PI". Besides, a Page 2 of 13 Demand Notes dated 04/07/2013 and 19/11/2013 with their annextures were admitted and marked Exhibit "P2" collectively. PWl further testified that, in response to the said Demand Notes, the Maliasili Department showed their intention to settle the matter. A letter by TFSA addressed to Kitare & Company Advocates dated 30/12/2013 was admitted and marked Exhibit "P3". Another letter authored by the plaintiff's advocate in response dated 27/01/2014 with its annextures was admitted and marked Exhibit "P4". The TFSA further stated in the response that, they had authority to confiscate the said pieces of timber vide a letter dated 2.5/02/2014 which was admitted and marked Exhibit "P5". It was PW l's testimony that, the timbers were harvested using ordinary handsaw and that the measurements were appropriate whereas the referred Transit Pass was not used in transporting timber as they were issued with another Transit Pass adding that, the changes were caused by delay of the raii cargo wagon. PWl also testified that, Azizi Jafari Masoud had sold some timbers to him whereas the first was concluded on I 15/07/2011 in which PW l purchased 612 pieces of timber, the second was concluded on 25/07/2011 whereas he purchased 188 pieces of timber. On 26/07/2011, he further purchased 67 pieces of timber from Azizi Jafari Masoud but this transaction was not reduced into writing. It was further testimony by PWl that, before embarking into that timber business with Aziz Japhari Masoud, he concluded an agreement with one Lucas Mlele of Manzese Dar es Salaam for sale and supply of 800 pieces of timber twice in a month, that is, a business of supplying 1600 Page 3 of 13 pieces of timber per month. A contract titled "Mkataba wa Kuuza na kununua mbao" dated 15/06/2011 for a period of two years was admitted and marked Exhibit "P6". In that supply agreement PW1 would have supplied 38,400 pieces of timber whereas in each piece, he would have profited Tshs. 20,000/= thus a disruption to that business raised a compound loss of Tshs. 768,000,000/=. PW1 stated that, he took a loan of Tshs. 25,000,000/= form EFC (a financial institution) in fulfilling his contractual obligations. Notably, PW1 admitted that Exhibit "P4" is In the name of Azizi Jafari Masoud adding that only 467 pieces of timber were confiscated at Mlimba Railway Station whereas the whole consignment was at Mlimba Railway station. On his part, PVV2 testified that, he is bearer of the Transit Pass as his names appears on the pass used by the plaintiff to transport timber adding that, on 15/07/2011 and 25/07/2011 he sold 612 and 188 pieces of timber to the plaintiff respectively to PW1 and he as well further sold to him 67 pieces of timber. After those sales, PW2 said he handed over to PW1 all the respective documents for the business to enable him to attend his sick mother adding that, he did not use the said Transit Pass before handing it over to PW1 (the plaintiff). It was further testimony by PW2 that, the said 67 pieces of timber had no Transit Pass. According to him, two Transit Passes were issued for 800 pieces of timber (2nd & 3rd) because there was a transit problem Page 4 of IB regarding the life span of the 2lld Transit Pass which would have expired before transportation of the 800 pieces of timber. On his part, PW3 testified that, he once entered into an agreement with PW1 for supply and sale of timbers executed on 15/06/2011 and reiterated what was testified by PW1 as to the contents of the said agreement adding that, the plaintiff did not supply the said timbers as contracted. PW3 said, on 06/06/2015, the plaintiff paid him the advanced sum of Tshs. 20,000,000/= in fulfillment of the agreement. It was further testimony by PW3 that, the plaintiff (PW1) showed him his Certificate of Registration which was in his name though PW1 did not show him his timber business license. Besides, the agreed size of timbers supply was not put into writing as was just agreed orally. Moreover, PW3 did not know of the seizure that occurred on the 26/08/2011. The agreed types of timber were pod mahogany/East African Afzelia (mkongo), African teak/blood wood (mninga) and kapok tree (msufi). On the other hand, DW1 an investigator working with the PCCB testified that, on 25/08/2011 she was at Mlimba - Ifakara in Kilombero District, Morogoro region where she was tasked to investigate on a matter concerning forest produces. She was informed that at Mlimba TAZARA Station there was a wagon suspected to have been loaded with timbers. At last, on 26/08/2011 they discovered from one Kassim Fortee that the said timber on board in a wagon belonged to Azizi Jafari Masoud (PW2). A report of what was discovered in the wagon was put on a report Page 5 of 13 titled "Taarifa ya Ukaguzi wa rnbao uliofanyika kituo cha treni Mlimba tarehe 30/08/2011" which was admitted and marked Exhibit "Dl". . ' - . ' . - i Besides, DW1 stated that, there was a big difference between what was harvested and what was being transported through that wagon. Also, license No. 5087 was suspected to have already been used to transport timbers covered in Transit Pass No. 259697 because of the excess obtained i- in the loaded timbers whereas the 2nd Transit Pass No. 0349814 was used to transport 15.638 cubic metres timbers. After investigation, the findings of the investigative team were that, the Transit Pass was to be used ito transport the load without a requisite license to fall and collect. r DW1 added that, in both the referred license and Transit Passes, Azizi Jafari Masoud (PW2) had applied for license and permit covering pod mahogany/East. African Afzelia (mkongo), African teak/blood wood (mninga) and kapok tree (msufi) whereas only the pod mahogany (mkongo) and African teak/biood wood (mninga) were found in the wagon where also they did not find in that wagon 146 pieces of 2x6x8 timbers of the pod mahogany (mkongo) tree covered in the license to fall and collect forest produce issued according to the Transit Pass. She also testified that they did not find 1x12x12 timbers of pod mahogany (mkongo) tree in the wagon. Besides, the sizes of pod mahogany (mkongo) timbers verified after finding them in the wagon were not covered by the two Transit Passes. For African teak/blood wood (mninga) timbers, they did not find 198 of 2x6x7 timbers contrary to the Transit Pass. Furthermore, DW1 testified that they did not find 94 pieces of Page 6 of 13 African teak/blood wood (mninga) timbers of 2x6x12, instead, they found 491 pieces of timber of 2x6x2 contrary to the Transit Pass. For wild kapok tree (Msufi Pori) they did not find 166 of 2x6x7 contrary to the license and Transit Pass. They did not also find 94 pieces of wild kapok tree (Msufi Pori) of 2x6x12. Besides, they discovered that, other cubic metres applied for in Transit Pass 0349814 for 800 pieces was 15.638 i- adding that in the wagon, they found 867 pieces of timbers of cubic metres 70.405 which was a big difference. DW1 also testified that both Lupalo and Mwinyi who stamped both Transit Passes were charged in court,in connection with the faults found on the license and Transit Passes and the pieces of timber DW1 found loaded in the wagon. Another witness for the defence side was DW2 who works with Tanzania Forest Services Agency (TFS). DW2 testified that, according to the Forest Regulations, 2004, it is provided that the cubic metres of timbers about to be transported or being transported should not exceed 30% of the cubic metres of the whole trees permitted to be harvested. He added, when, they conducted the inspection on 30/07/2011, they found 72 pieces of pod mahogany (mkongo) timbers measuring 6.026 cubic metres and 795 pieces of African teak/blood wood (mninga) measuring 64.379 cubic metres making a total of 867 pieces of timber. He added, PWl did not conform to the "Muongozo wa Uvunaji na Usafirishaji na Biashara ya Mazao ya Misitu ya 2007" issued by the Ministry of Natural Resources. Page 7 of 13 In his final submission, the defendants' counsel submitted for the 1st issue that the plaintiff was required to prove that the timbers confiscated by the 1st Defendant fits the description of the timbers in the contracts. He added that, in the license to fell and collect forest produce in licence No. 000005087, the types of timbers felled and collected were pod mahogany/East African Afzelia (mkongo), African teak/blood wood (mninga) and kapok tree (msufi) with total of 10.041m3 for all. He argued that, the contracted subject in the two contracts (Exhibit P4) is different from what was confiscated by the 1st defendant meaning that, the plaintiff was not the lawful owner of the confiscated timbers as the subject matter differs from what was specified in the two contracts. Regarding the 2nd issue, the defendants' counsel submitted that, no document was tendered in Court in the plaintiff's name adding that, under Regulation 54(1) of the Forest Regulations, 2004, it is provided that:- "No person shall deal with or trade in timber or other forest produce without applying for and obtaining a certificate of registration as a timber or other forest produce dealer or trader." The learned State Attorney added that, Regulation 13(1) of the same Regulations provide that:- ■ "No forest produce such as trees, timber, logs, poles, charcoal, firewood, gums, fibrevS, flosses and the like shall be removed from any forest area or woodlots under the control of the Forestry and Beekeeping Division, a local government or urban authority or private owner, or from any other location unless a Transit Pass in form set out in the Fourth Schedule to these Regulations has been obtained." The learned State Attorney further cited the provisions of section 51(6) of the Forest Act, 2002 which provide that:- Page 8 of 13 "Unless the matter is specifically provided for by any condition in a permit, a permit is personal to the person or organization to whom it is issued and may not be transferred to any other person or organization but this shall not affect the validity of a permit granted to a corporate or other body which is transferred to or bought by new owners." On his part, the plaintiff's counsel submitted for the 1st issue that, Exhibit "D l" was not pleaded in the plaint and no notice was issued to the opponent in terms of section 68 of the Evidence Act, [CAP. 6 R.E, 2002]. On those bases, the plaintiff's counsel argued that according to section 94(4) of the Forest Act, 2002, it is not necessarily that it is the owner of the seized timbers who should appear after seizing of the timbers but a person in control of the seized properties may also appear as the plaintiff did whereas he appeared within 30 days thus within the law precepts. The plaintiff's counsel thus argued that, the confiscation by the officers of the defendant was unlawful because the defendant did not establish how the Transit Passes were already used, He added that, even if the said forest produce were illegally acquired, then, the Forest Act (supra) imposes a right of fine to the offender and not confiscation. Regarding the 2nd issue, the plaintiff's counsel submitted that, the plaintiff had established that he bought the said forest produce from one Azizi Jafari Masoud in a contract witnessed by the Village Executive Officer. As to the 3rd issue, the plaintiff's counsel submitted that, the plaintiff is entitled to the sought prayers in the plaint. Page 9 of 13 Having considered the evidence on record and the respective submissions by counsels for the parties, the following are the findings of this Court in disposal. • ' In the first place this Court will account for the concern raised by the plaintiff's counsel regarding admissibility of Exhibit "D l" in evidence. With due respect with the submission by the plaintiff's counsel, admissibility of this respective piece of evidence and all the concerns about its authenticity and reliability are of rio essence because it is not in dispute that the figures appearing in the said Exhibit "D l" regarding the confiscated forest produce, that is, 867 pieces of timbers tallies to what is pleaded by the plaint under paragraph 4 of the plaintiff that On 26/08/2011, the officers of the 1st defendant confiscated 867 pieces of timber properties of the plaintiff. Though this Court as a Court of record salutes proper admission of documents in the purview of the law before they are acted upon by a Court of law in determining the rights of the parties, the fact that the contents of the said very document tally to what is pleaded by the plaintiff, this Court finds it inordinate for the plaintiff's counsel to raise and argue against the pleadings filed by his client. This kick back now advanced by the plaintiff's counsel, as aforesaid, is inordinate as it is tantamount to urging this Court to discount paragraph 4 from the plaint. After all, objection as to admissibility is raised when that particular piece of evidence is tendered in Court for admission and after the same has been admitted, its admissibility can be challenged before the higher Court and not before the very same Court. Notably, admissibility of a Page 10 of 13 i document is one thing whereas paying weight to an admitted piece of evidence is another. ^ Having accounted for that minor concern, I will now revert to issue in controversy starting with the validity of the Certificate of Registration issued to the bearer one Azizi Jafari Masoud. This takes us to the 2nd framed issue which I prefer to tackle now, that is, whether the confiscation of the timber by the 1st defendant was lawful. It is clear on record that the Certificate of Registration No. 00032027 dated 28th day of July, 2010 was issued to Azizi Jafari Massoud for forest produce business in Ulanga-Morogoro and was due to expire on 30th day of June, 2011. This is in accordance with Exhibit "P4". Now, per the plaint and according to the evidence tendered in Court, the pieces of timber subject before this Court were confiscated by the defendants on 26/08/2011. The immediate question is where in the first place, there was any valid Certificate of Registration allowing the plaintiff or else (Azizi Jafari Masoud inclusive) to deal with forest produce. Regulation 54(1) of the Forest Regulations, 2004 provides that:- "No person shall deal with or trade in timber or other forest produce without applying for and obtaining a Certificate of Registration as a timber or other forest produce dealer or trader". Thus, without entering into the debate where the plaintiff in his personal capacity had applied and obtained a Certificate of Registration which in the first place could justify his dealing in the timber business dr not, just sticking on the Certificate of Registration issued to Azizi Jafari Masoud which is said to have been the subject of the sale agreement Page 11 of 13 between PW1 and PW2 paving way to the matter under scrutiny, since the Certificate of Registration issued to one Azizi Jafari Masoud was issued on 08/07/2010 with due expiring date on 30/06/2011 and considering that the sale agreement entered between the plaintiff and Azizi Jafari Masoud dated 15th day of June, 2011 the same covers only up to 30th day of June, 2011. According to the Court record, no extension was ever sought for and obtained or rather re-registration of the said Certificate. From the above quoted regulation, it is undoubtedly clear that unless one has applied and obtained a Certificate of Registration or in other words, if one has no Certificate of Registration in operation including its validness, there is no way he can legally operate a business in respect of forest produce. ■’ J ‘ -I.'; ’ • " *■ • i Observably, the Transit Pass Forest Produce No. 0349652 is dated 18/08/2011 whereas Transit Pass Forest Produce No. 00259697 is dated 20/07/2011 while Transit Pass Forest Produce No. 0349814 is dated 28/07/2.011, that is, ali were secured after expiry of the Certificate of Registration. Thus, even if the said Passes were issued by the respective authorities (though as testified that the officers who endorsed the said passes have been charged which is not the case here), yet, existence of a valid and operational Certificate of Registration was primary. From the above in the upshot, since there was no valid or operational Certificate of Registration and considering that no extension was ever issued or granted to the plaintiff (or Azizi Jafari Masoud),--therefore, the dealing with forest produce whatsoever was illegal. In the circumstances, the defendants had justification to confiscate and dispose by sale the said Page 12 of 13 forest produce in terms of section 94(4) of the Forest A il (supra) to list a few as provided for in whole under part IX of the Forest Act (supra). Therefore, the 2nd issue is answered in the positive. Having so held, the l 5t issue as to whether the plaintiff is the lawful owner of the confiscated timber is immaterial for no matter ownership the forest produce the same might be, the dealing with forest produce having been held illegal, confiscation was the consequent and appropriate remedy ahead of measures as prescribed for by the laws, regulations and rules. In the final analysis, the plaintiff's claims are devoid of merit and the suit is dismissed in its entirety. The defendants will have their costs. It is so ordered. DATED at Dar es Salaam this 24th Day of June, 2016 Mr.Venance Mwakibinga, the Plaintiff in person, and Ms.Grace Mbunda, State Attorney, for the Defendants. Right of Appeal is explained. p . r .k a h y q z a DEPUTY REGISTRAR Page 13 o f 33