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 justification.

Contract - Interference with economic interests of a licensee - A third party interfering with licensee's legal contractural right - Actionable.

-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. 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.

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 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) 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 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.

1983 TLR p231

Cases referred to: 

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. 

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

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 ... 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 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.

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 recognized by law. In this case the act of the appellants cannot be unlawful unless the 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,

... it is clear that if A is damaged by the action of B, A nevertheless has no remedy against 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. 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 complaining; that is, it must prejudicially affect him in some legal right; merely that it will, 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.

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 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 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 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. 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 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 executing a common enterprise for which the law requires the acquisition of a licence and a licence is duly issued in the name of one of them, not being a corporate or partnership 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 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 .... 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 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 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 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. 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 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 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 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 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 respondent's interests to assert a lower figure taking into consideration the number of 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 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. 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. 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.

Appeal allowed.

1983 TLR p238

A