Mkoja v. Kaniki and Kashoro Civ. App. 10-M-70; 28/5/71; Mnzavas Ag. J.

Mkoja v. Kaniki and Kashoro Civ. App. 10-M-70; 28/5/71; Mnzavas Ag. J.

           The appellant sued the respondents claiming a total of Shs. 1,850/- as value of his crops damaged by the respondents. While the appellant who owned a shamba in Geita was away, the Village Development Committee allocates his shamba to other persons. This person cleared the land for cultivation. At the same time, appellant returned and ploughed the land using a tractor. This action was reported to the Divisional Executive Officer who ordered the persons who had been allocated the land to go on cultivating. They planted cotton and the appellant also planted beans and maize on the same land. After a week or so, the beans and maize as well as the cotton crops started growing. Again it was reported to the Area Commissioner that the appellant had planted beans and maize. The Area commissioner ordered the beans and maize to be uprooted. This was done and the respondents were among the people who did the uprooting. The trial magistrate held that the respondents were not liable as they were obeying superior orders. Appellant argued on appeal that a superior order was not a defence.

                        Held: (1) “From the evidence there can be no doubt that it was the Village Development Committee who allocated the shamba of the plaintiff to Tausi and Atanasi. There is evidence that when it allocated the shamba to Tausi and Atanasi the shamba still belonged to the plaintiff who, though he was in Mwana at the time, he left the shamba with one of his employees who was actually living in the shamba. The allocation of the shamba to Tausi and Atanasi while it still belonged to the plaintiff was by itself irregular leave alone the order by the honorable Area Commissioner to the Village Development Committee to uproot the beans and maize crops which was clearly wrongful and uncalled for. The two defendants, Stephen Kaniki and Boda Kashoro, having acted on the wrongful orders of the Area Commissioner they are equally responsible for the wrongful uprooting of the crops of the appellant.” (2) “I agree with the learned resident magistrate that the appellant should have joined the Area Commissioner as a defendant as he was clearly the instigator of the tortuous act, but such procedural irregularity does not in the least exclude the two defendants from liability.” (3) Appeal allowed. Judgment for the appellant in the sum of Shs. 1,850/- being value of the crops.