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MKUKI AND ANOTHER v MBARA M. HATIBU 1983 TLR 230 (HC)



MKUKI AND ANOTHER v MBARA M. HATIBU 1983 TLR 230 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

June 4, 1984

CIVIL APPEAL 1 OF 1981

Flynote

Tort-Interference with contractual relation - Violation of economic interests without

B justification.

Contract - Interference with economic interests of a licensee - A third party

interfering with licensee's legal contractural right - Actionable. C

-Headnote

The respondent using a friend's licence engaged in lumbering in the appellants'

village forest. The appellants stopped him and confiscated 4 saws and 40 pieces of

timber. The respondent successfully sued the appellants in tort in a Resident

Magistrate's Court. D The trial magistrate without identifying the tort allegedly

committed by the appellants found the claim fully established. On appeal the

appellants complained against the decision of the resident magistrate arguing that

they acted lawfully in interfering with the acts of the respondent. E

Held: (i) (Obiter) Assuming the acts of the appellant were unlawful: (a) the removal

and taking of the timber which were never recovered amounted to trespass and

conversion; (b) the confiscation of the saws amounted to trespass to chattels, but since

there was a F prayer for their restoration the respondent's action was also founded in

detinue; (c) stopping of respondent from further lumbering amounted to a tort of

interference with contractual relations;

(ii) the respondent's action was based on an alleged interference with a

supposed contract, and the other apparent wrongs (trespass, conversion and detinue)

G were manifestations of it and were inseparable as such they cannot found a

separate cause or causes of action;

(iii) the acts of the appellants cannot be unlawful unless the respondent was

exercising a legal right;

(iv) the activity of the respondent in cutting and removing timber from the

forest H at Minyughe was unlawful because he had no licence; thus the appellants'

act of stopping him was a lawful act;

(v) the respondent's cause was not actionable on the ground that ex dolo malo

non oritur actio.

Case Information

Appeal allowed. I

1983 TLR p231

Cases referred to: A

1. D.C. Thompson & Co. Ltd. v Deaking [1952]2 All E.R. 361.

2. Croffer Hand Woven Harris Tweed Co. Ltd. v Veitch [1942]1 All E.R.

142.

3. Rogers v Rajendra Dutt (1860) 13 Moo. P.C. 209.

4. Muhuri v Kiritu [1969]E.A. 232. B

1983 TLR p231

LUGAKINGIRA J

A. Mukri for the appellants

[zJDz]Judgment

Lugakingira, J.: This old case arose from a rancorous incident in a forest at Minyughe

in Singida district. For some time residents of Minyughe village had become aware of

C what they considered as illegal lumbering in what they also regarded as a village

forest. On 20.9.79 the village government met and discussed the issue and resolved to

put an end to this activity. On 23.9.79 a group of villagers, led by the first appellant,

the village manager, proceeded to the forest and there found the respondent's

employees busy D felling trees and sawing them into timber. In a bitter encounter

the villagers ordered the workers to stop and even confiscated four of their saws. The

workers went away and reported the incident to the respondent. It was claimed that

they left behind 290 pieces of sawn timber. Sometime later it is not clear when - the

respondent went for the timber E but allegedly found 250 pieces only. There was an

apparent loss of 40 pieces and the respondent's case was that they were taken by the

appellants.

On 1.10.79 the village government met again and summoned the respondent. On his

F arrival he was required to pay village dues for the timber in order to redeem the

saws. (In fact the appellants said there were 390 and not 290 pieces of timber). The

respondent refused and commenced action in the Resident Magistrate's court of

Singida claiming special damages amounting to Shs. 13,530/= (his apparent

investment), the return of saws and costs of the suit. In a lengthy analysis suffused

with Latin phrases the G trial Resident Magistrate found the claim fully established

and entered judgment for the respondent. The appellants were dissatisfied and

brought this appeal through learned counsel Mr. A.Q.A.R. Mukri of WASHIRIKA.

The appeal finally proceeded to hearing after countless adjournments but the

respondent did not appear although duly H served.

I desire first to ascertain the legal basis of this claim. I assume this burden in view,

especially, of the unprofessional nature of the pleadings and even of the prosecution

of the case. Undoubtedly, the claim was founded in tort but one cannot proceed, as

the trial Magistrate did, without identifying the tort or torts relevant to the facts. In

precise I term a tort is

1983 TLR p232

LUGAKINGIRA J

the unlawful invasion or denial of a legal interest. It therefore involves a wrongdoing

on A the one part and a grievance on the other. From the evidence of this

case I surmise that three matters were the subject of complaint. First, the appellants

stopped the respondent's employees, in effect the respondent himself, from further

lumbering; secondly, they were alleged to have removed and taken away 40 pieces of

timber which B were never recovered; thirdly, they confiscated four saws. I think

the law is settled and clear as regards the second and third acts. The removal and

taking of the timber which were never recovered amounted to trespass and

conversion. The confiscation of the saws similarly amounted to trespass to chattels,

and since there was a prayer for their C restoration we can say that the respondent's

action was also founded in detinue. For the avoidance of doubts, these statements

proceed on the assumption that the appellant's acts were unlawful.

The act of preventing further lumbering presents some difficulty. This, again on the

D assumption that it was unlawful, amounted to a denial of an interest in the sense

that the respondent was denied the right to fell and remove timber. This denial of an

interest did not as such involve physical interference with the respondent's person,

land or property. In short there was no direct injury. It is perhaps one of those

situations which under the E English common law was classed as trespass on the case

or, simply, case, but I do not have to go into that for the law has sufficiently

developed to dispense with the uncertainty of a mouldy doctrine. In the instant case

the respondent claimed to have had a valid licence issued by the department of

natural resources under the Forests Ordinance, Cap. F 389. It seems to me,

therefore, that the proper way to look at the matter is to regard the appellants' act as

an interference with a contract. The contract arises this way: that in consideration of

the fees paid to the Government the licensee was entitled to fell and remove a certain

quantity of timber. I will come to the specifics of this formulation at the appropriate

stage later. It suffices to observe here that the law recognises the tort of G

interference with contractual relations and this rests on the principle that the

violation of economic interests without justification is tortious.

Interference with a contract may take various forms, e.g. by persuading or inducing

or H procuring one of the parties to the contract to break it. A similar situation may

be occasioned, and it would be actionable interference, if a third party does an act

which, if done by the contractor, would amount to a breach of the contract. In the

case before me if the licensing authority had without justification done what the

appellants did or had in similar circumstances revoked the licence, that would have

amounted to a breach of I contract giving rise to a cause of action. On that

1983 TLR p233

LUGAKINGIRA J

footing it becomes actionable for a third party similarly to interfere with the use of

the A same licence. Similar propositions are to be found in a number of English

decisions but I need only refer to one. In D.C. Thompson & Co. Ltd. v Deakin

[1952]2 All E.R. 261, JENKINS, L.J. said, at p. 378 (quoting the relevant parts only): B

Again, so far from persuading or inducing or procuring one of the parties to

the contract to break it, the third party may commit an actionable interference with

the contract ... if ... he does an act which, if done by one of the parties to it, would

have been a breach .... Further, I apprehend that an actionable interference would,

undoubtedly, be committed if a third party ... C placed physical restraint on one of

the parties to the contract, so as to prevent him from carrying it out.

In the instant case, therefore, the position as I see it is that the respondent's action

was D based on an alleged interference with a supposed contract. The other

apparent wrongs, that is, trespass, conversion and detinue, arising directly as they do

from the alleged interference, were manifestations of it and are inseparable. They

cannot therefore found a separate cause or causes of action. E

The foregoing, however, is one side of the coin. As stated earlier, a tort is the

unlawful invasion or denial of a legal interest. In other words, a cause of action will

not arise unless the action complained of is unlawful in the sense that it interferes

with a right recognised by law. In this case the act of the appellants cannot be

unlawful unless the F respondent was exercising a legal right; for if he was

lumbering unlawfully the act of the appellants in stopping him cannot be unlawful

and any injury suffered cannot be a legal injury. In the words of Viscount Simon,

L.C. in Croffer Hand Woven Harris TweedCo. Ltd. v Veitch [1942] 1 All E.R. 142,

148, G

... it is clear that if A is damaged by the action of B, A nevertheless has no

remedy against B if B's act is lawful in itself and is carried out without employing

unlawful means. In such a case, A has to endure damnum absque injuria. H

In an earlier case, Rogers v Rajendra Dutt (1860) 13 Moo. P.C. 209, it was similarly

said:

It is essential to an action in tort that the act complained of should under the

circumstances be I legally wrongful as regards the party

1983 TLR p234

LUGAKINGIRA J

complaining; that is, it must prejudicially affect him in some legal right;

merely that it will, A however directly, do a man harm in his interests, is not

enough. With these principles in mind I will now turn to consider the position in this

appeal. B

One of the issues framed by the learned trial magistrate was "Whether the plaintiff

was authorised to carry out business-lumberjacking". In effect he was addressing

himself to the legality of the respondent's activities. He answered the question in the

affirmative and C did so on the following evidence. At the trial the respondent

produced a licence (Exh. P1) which was not in his name but in the name of one

Jumanne Issa. He claimed that the licence was jointly owned, saying that he and

Jumanne Issa "worked together". He then called a forestry officer, one G.E. Lyimo,

who also stated: "On the said (licence) we D wrote the name of Jumanne Issa and

there was no reason to write the name of Mbara for both work together". Jumanne

Issa was not called to testify. The trial magistrate considered the alleged arrangement

and said:

I am not in doubt that the plaintiff had a licence to carry out lumberjacking.

The said licence E was owned jointly but it was issued in Jumanne Issa's name. I do

not find anything illegal in this. If by insisting that the licence carried by Mbara was

not his for it was written in Jumanne Issa's name, (sic) the defendants had strictly to

prove this. They could have looked for and called the said Jumanne Issa to give

evidence to that effect. Whoever alleges has the duty to F prove.

These remarks and the evidence of the forestry officer are, to put it mildly, rather

startling. I will demonstrate this beginning with the licence issue. G

I should perhaps start by mentioning that Mr. Mukri merely drew my attention to the

fact that the licence was in Jumanne Issa's name, an obvious fact, without elaborating.

I was therefore not adequately assisted on this subject. For my part, I must confess

my H ignorance of how a licence issued to a particular person can avail itself to

diverse persons on the allegation of working together. I think, with respect, that

would defeat the whole purpose of licensing, and licences would be liable to abuse,

for there can be no limit to the number of persons who, when it suits the occasion,

may claim to be working together. I think I am correct in saying that if a hundred

persons are desirous of I executing a common enterprise for which the law requires

the acquisition of a licence and a

1983 TLR p235

LUGAKINGIRA J

licence is duly issued in the name of one of them, not being a corporate or partnership

A name, the licensee is the person named therein but not the other ninety-nine.

This is not to say, and I should not be understood as saying, that the licensee cannot

take on a partner or partners even after acquiring the licence in his own name. He

certainly can; and the legality of the partnership and its competence to operate on the

strength of the B licence would not be vitiated thereby. What I am saying is that the

partnership cannot operate without the licensee remaining a partner and manager of

the business nor would it be open to any of his partners independently to set up his

own business on the strength of the licence. For want of a local authority I will refer

to the Kenya case of Muhuri v C Kiriu [1969] E.A. 232 which I find instructive. In

that case one Godfrey Muhuri obtained in his name a road licence under the Kenya

Transport Licensing Act, Cap. 404. He then purchased a motor bus with monies

contributed by a number of other persons. Each person was to receive a share in

Muhuri's name. It was accepted that D this resulted in a partnership managed by

Muhuri. Subsequently a dispute arose among the partners and some of them brought

an action against Muhuri and others seeking a dissolution of the partnership with the

taking of an account. It was contended by Muhuri and others as a preliminary issue

that as the licence was in Muhuri's name alone the partnership was illegal. The High

Court of Kenya held that Muhuri carried on business E in his name subject to the

equities in favour of all partners and the partnership was lawful. This decision was

upheld by the Court of Appeal which went on to observe. (at pp. 234-5):

... Godfrey Muhuri was, with the agreement of the partners, to manage the

transport business F .... As manager he would operate the transport business on

behalf of the partnership. In effect he would be the person responsible for conveying

the passengers under the licence .... The position might well be different if Godfrey

Muhuri in fact had not been managing the G transport business.

In the instant case the respondent was in fact carrying on business in which the

licensee, Jumanne Issa, had no interest at all, although he alleged that they worked

together. It is H abundantly clear from the plaint and from his evidence that he had

set up his own independent business. To that end he described himself as "a licensed

businessman" and never even bothered to call Jumanne Issa to testify. But, in my

view, he was like the hypothetical ninety-nine and could not lawfully carry on his

own business on the strength of the licence issued to Jumanne Issa. It was equally

unlawful for the latter, if he did so, I to pass on the licence to the

1983 TLR p236

LUGAKINGIRA J

respondent. Indeed one of the conditions annexed to Exh. Pl and appearing at the

back A thereof is that it is not transferrable.

In sum, the respondent had no licence authorising him to cut and remove timber

from the forest at Minyughe. His activity was thus unlawful and the appellants' act of

stopping him was a lawful act. It follows that the appellants' act was not actionable or

(if Latin be B more to the affection of the trial magistrate) ex dolo malo non oritur

actio.

The remark of the trial magistrate on the issue of evidence can be dealt with briefly.

As observed by Mr. Mukri it is apparent that he misdirected himself on the burden of

proof. C Undoubtedly, whoever alleges has the duty to prove. In this case the

appellants alleged that the respondent had no licence and it is this contention which

the law required them to prove. I think, with respect, that this burden was

discharged the moment a licence was produced which was not in the respondent's

name. The burden then shifted to the respondent to prove that the licence was in fact

his. As just demonstrated it D wasn't his in fact. Perhaps the learned magistrate

would not have fallen into the error he did had he not taken at its face value the

evidence of the forestry officer

I believe that the foregoing is sufficient to dispose of the appeal but there is another

ground to which I should refer. Assuming, as the trial magistrate did, that the

respondent E was duly licensed, the question arises whether he had not utilised the

licence fully. Mr. Mukri argued this point and came up with calculations to show

that the respondent's loss was incapable of demonstration. Unfortunately, I cannot

take advantage of learned counsel's able calculations because he appeared not to

differentiate timber from logs. F He therefore spoke of the respondent's having

felled 290 logs whereas these were sawn timber. I desire to approach the matter

differently. The licence in fact authorised the felling of 100 mninga trees only. It was

upon the respondent to show that he had not felled that number of trees when he was

interrupted. However, the respondent, whose G 22 workers had been in and out of

the forest for the previous one month, passed over this subject in silence. The

workers might already have felled more than that number, perhaps also less, we do

not know. In this connection it is not irrelevant to observe that whereas the

appellants asserted that there were 390 pieces of timber in the forest the respondent

put the figure at 290. The trial magistrate does not appear to have H appreciated the

significance of this discrepancy. He thought the appellants were unwise, because a

higher figure tended to aggravate their liability; and also untruthful, because the

respondent, supposedly, could not understate his loss. I am unfortunate in seeing the

I issue differently. In my view, since it was against the appellants' interests to assert a

higher figure, they might well have been truthful. On the other hand, it was in the

1983 TLR p237

LUGAKINGIRA J

respondent's interests to assert a lower figure taking into consideration the number of

A trees allowed under the licence. Be that as it may, whether the timber were 290 or

390, there was no evidence that the respondent had not felled 100 trees and thus

made full use of the licence. There was therefore no evidence that he suffered any

legal injury by reason of the appellants' interference. The trial magistrate nearly hit

at the idea, but it B slipped through his fingers, when he said: "Because it has not

been argued as to the quantity of the pieces of timber the plaintiff was destined to

make it will be difficult to assess the real loss the plaintiff suffered". Had he

substituted trees for pieces of timber and realised that the former were a fixed

quantity, he should still have found it difficult to C assess the respondent's alleged

loss.

Before concluding I wish to make an observation on the pleadings. It is noted that

the second appellant was stated as "Kijiji cha Ujamaa Minyughe". That was

undoubtedly vague and improper for I conceive of a village as a collection of

hundreds of residents. D If it were the respondent's intention to sue a group of

villagers, as the plaint initially indicated, he could have done so by a representative

suit after obtaining the trial court's permission. However, that would still have been

improper since his quarrel was not with the villagers as such but with the village

government which had ordered the acts complained of and even summoned him to a

meeting. He should therefore have sued the E Village Council which was a body

corporate under Act No. 21 of 1975 with power to sue and be sued. In view of the

outcome of the appeal, however, I do not have to decide the effect of the irregularity.

Mr. Mukri raised other interesting points but I consider it unnecessary to discuss

them. F It suffices to reiterate that the respondent had no cause of action since he

was engaged in unlawful lumbering. Alternatively and without prejudice, there was

no evidence of his alleged loss. I therefore allow the appeal with costs after setting

aside the judgment and decree of the court below. G

H Appeal allowed.

1983 TLR p238

A

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