19700529 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA AT LIWANZ APPELLATE JURISDICTION (p.c.) CIVIL APPEAL NO. 34 OF 197 0 (Prom the decision of the District Court of Bukoba dstrict at Bukoba. In Civil Appeal No. 391 of 1969 Bfore: A.N. Ruseta,. District Hagistrate. Ewani10 Primary Court Case No. 105 of 1969. F&ician Nirnmukama... ...... . ............... Appellant(Originnl Defendant. versus Lonard F. Rugakingira,.. ..... ........ .Respondent ...... (Original Plaintiff) JUDGEi15'P Seaton J. The app ilant was sued in the Primary Court for shs 400/- compensation f r cutting down the forest trees of the respondent. He defended hinis.e f on the ground that he was acting as the employee of one George Kas ebo, Who had a licence fro:a the Bukoba District Council to fell the tr es and split them into firewood for baking bricks for sale, for whic he had paid the necessary fees. The Primay Court heard the evidence of the parties and of their witnesses inc1!iding George Yashebo. he trial court found tb: t the appe- llant had cut the trees as labourer for George ]iashebo, who should have been suedinstead of the appellant. Hence the suit was dismissed. On appea1 the District Court found that the forest was nota natural one but was cultivated and developed through the tftoil of the father of the respondent! Such a forest could not be allocated to someone else as the District Cciuncil purported to do for the sake of making building materials. ,Th decision of the Primary Court was therefore reversed. At the hearing of the appeal to this court, the appellant has pr- oduced the licnce and receipt for fees given by the District Council to George Kashbo. lie has submitted that all that he did was on instr- uctions and beiialf of his employer hence the latter should be sued. Further he has ged that hepenuinely thought the forest was public land under the kstrict Council and in any event, shs 400/- compsensation is excessive. I have no Ireason to doubt the sincerity of the appellant's contention that he believc rt1 the land was owned publicly and that George Kashebo, his employer, h6 a validDlicenco to cut trees on it. But the District Court's findinil tht the istrict Council cöüld not allocate another person's land i undoubtedly correct and igne,rance is no defence to an action for trespass suclli as this. Nor is the fact of employment by another if the 6,mploycr himself has no valid title or interest. It woyld probably have been more prudent for the respondent to have joined George Kashebo as a defendant asThe latter might be in a better position to satisfy any udgaat-debt. -2 - But the appellant was properly held to be liable and the shs 400/- compensation appears to have be;n justified from the evidence on record as to the number and value of trees felled. The appellant Y.iaay, if he wishes, sue his employer, Geor'e Kashebo, to recompense him forthe compensation he will have to pay the respondent. The appeal is dismissed, Since the respondent has not appeared, I make no order as to costs in this Court. Delivered in Court at Lwanz. this 29th day of Uay, 1970. (E.E.sEAToT) JUDGE.