Damages- ~ - Treapasa aDd conversion of trees- Whether relevant
jJtat if permission to cut treeo hag been alked of owner it likely
would have been granted - Whether relevant that other villager •
..R.rofited PI th!! cut trees - Value of the traQIl as "growing tree."
must be considered.

Land hw- §.aru :ri._mt_!~ l!!..d ';3..£.~Ei}i ~ ... ~.ll9.1:'

Land l~ ~ Karu Irlg_hh - J!U,ht. t.o "cut food" - Whether includes right
to cut down main body oj tree- Efie~t of 109al I!.overnmen~ order
forbidding the t1Urting down of such treel,

Def!::udal1lt o'lfr"~d c c r t e i n iall.4s "h' ch o"nerahi p gave ~im certai n
addt t.t ons I r-i gh t a to "~ut waod" on the nearby land of the Government,
the p l a.i n t.r ff, Deferndarnt cut down the whole body of some ~39 tree •

of plaintiff's land for the purpoae of clea~ing the land for cultivation.

Plaintiff sued for the v~lue of the tree~ 30 cut,it was In the High Court

On e.pplio&.tion for re·qision to the Court of Appeals, it was

]L~i: (i) The High Court's interpretation of the defendant's
right. to out wood ••.• 8,0 correct.

(ii) The High C:)urt's determination of the amount of damages 11as
eoro-ect , It was irrelevant tha·t had permission been sou~t from
the GO'lernment to cut the trees it might have been tVanted, and
tlmt other villa~ers profited by the cut trees. The value of the
trees aa "grovling trees," although difficult to calculate, must be

Revisicn

U1S judgms It of the High Court is f'o.l Lowed b;;- the jud~ent of the
Court of .'lppeals on application for revision.

2~---l..:.: JIov0mber I:), 1945. In this case the plaintiff,' the Sudan
Govcrnmentp is cla~mln& from the defendant, cultivator of Sidir Village,
Ber'Jer District a sum of T~E.65 by way of damages for trespass and con-
version. This is the eotimated value of :::'11 full grovm dom trees at

the rate of 20 P.T. per tree and 428 youn~ dom trees at the rate of 10
P.1'. per tree cut down \'Jithout right or permission by the defendant on
the plaintiff's land.

Tho case for the plaint.iff i<; that the defendant, one of the owners

of laud. in S-O··gia No. 23 (A) (or 23(1)) Sidir and thereby using certe.in
ri[;l:ts ire Sc.gie, 23 (C) Sidir_p cut dOl·m 111 full grcwn dom trees and 428
yOUT.~ dom trees on Sagia. 23 (C) Sidir end that such cutting dovn of the

dom trees NaS \~ithout the consent of the plaintiff, the owner of the land

in Sagie. 23 (C) ani \-laS not covered by any rights to ,~hich the defendant
might be entitled in virtue of his bein~ an o~~ner in Sagia No. 23 (A).

The plaintiff hao submitted ~hat the right of cutting wood for domestio

and ~or cultivation purposes which is one of the rights to which the
plaintiff as o,mer of Sagia 23 (C) is subjeot in favour of owners of 23 (A),
does not alloH the ,~hole cutting down of the living trees, but merely

allows the cutting and using of bratlches end leaves for such purposes as
fire l~ood, repairs to s.:l~ias, basket Dakin!!; and similar ,\-york.

There is in addition a local €Overnment order (Local Government
Orders 1939, Chapter III, Part I, section 1), applicable to this area
(Sidir Village Berber District) which forbids any person to cut down or
damage by removin~ the bark or otherwise any livin~ dom palm tree or
any living tree of ~~hich the leaves or fruit are used for the feeding
of animals without written permission from the local authority or from
s\1ch other parson as the local authority frAy authorize to issue such
permits on his behalf. The defendant had no such permission.

'flle plaintiff claims dana5es at LE.65. This fi~~e is made up at
20 P.T. for the III large dom trees ~ld 10 P.T. for the snaIl dom trees
out llown by defendant.

The defendant in reply state~ that he admite removin~ 33 groups of

dam trees, but merely in order to clear the land on 23 (c) for purposes

of culth>ation. He had no kno1~led.€e - he ctates - of the conditions
attached to SaCia 23 (C) and had 11C b,olJled.;e of any Lo oa'l, order forbHding
a l'",rso" to out dom tree". He does net deny that the number of trees cut
down a~~I''..1Xlt b all to a. number 539. Jut in any cane, the defend.ant arGues I
tJlC ri.:;ht of cuttir..C \.1000. "for Cl'.ltivation puzponea" eives him the right

to cut Iown <1~1d remove the dom trees in olea,rir.g the land for purposes

O:l cultivation. He f'ul'thor ot2.te:: that the eat Lmat ed vnlue of 20 P.T.

pcr l~l'C'~ dOll! and 10 P. '1'. r C,I' ::Jr.'Jall c1or_: is C;l'satly in excess of the true
value that neither the In.rce tree<J ,lOr the small trees had any value vlhat-
;:,OfJvt1r and tl,at r;o C:'19 Houl~l have b~~r. 1'lilling_t for the value of th~ \-;ood,
to have them r enoved , end he actually paid out LE.5 to hava the trees du~
up for t he clearing of the lr..n,d.

As I cee it, 0:1 the correot int'J;rprct<:\tion of the karu rights over

the COVCrlliT-ent land. Sagia 110. 23 (C) it can not be held that the d ef'endarrt
or e..'YJ.y other Olmer of 23 (A) or any pl'lrGon has the ri~t to cut dovm >,holly
cnd. ;:':0 deotroy the trees l-lithout permisaiCin. If it had been intended that
a person should be able to cut 'down, or root up, and so completely destroy
a tree, either.t;,e "riGh.t to cut \lood," \~ould. not have been mentioned, or

limited at ~llt or npeoifio mention 110uld have been made that for purposes

of olearin~ the Land the who l e tree could be cut down and removed.

i''urtherT.1ore, there is a local b'Ov@rnment order lc/hich forbids the
Ct:ttil'.ti .lm""1 of ;;:, dom tree loJithout written permicsion. This order applies
to 0.11 land, both to privately ovmed as well as to COVer!lment owned Idd

over which karu ri~hts have been ~anted by the Government. It is un-
reasonable to sUP:t>OGe that suoh an order would be prot1ul!8ted to apply
to private and ~vernr.lent land, \-Ihen on certain government land a person

could have the right to cut down trees t~ithout any permission. It is an

order which accordint; to the eVidenoe is \>lell knosn , certainly to all
persons in the neighbourhood.

Also in the General Karu Decision of Mr. Tippets, november 24, 1907
under section 4(b), a forestry ri~t is described as "a rit;ht of f;;very
registered forestry right holder of a village to cut and take auay f'r-om
the land registered in his or her own name such amount of wood neccRsary
fer 1'..1~ .or her own agricultural or domestio purposes', provided always
that each and every forestry ri6ht holder han the ri~ht to cut &1".C', 'l;;al"~:
away from off any part of the karu of such villa..,o-e as demarcated by me
firer/ood for his or her O'l-In household purposes." The reference is 1;(>
the wood onlYI the 110rd tree is not mentioned either here or in t he
Land Registers.

I believe then thet these karu ;ri,hts in eovernment land as rer,aris
I/Qod-cutt ing e;ive '~he :right to use parts of the uood for sa.:ia rep£:iZ';:),
fire-HOod to use the ern(lS for rope makint!: or basket making or sinn,",:!:,
Iwrk, but that the main body of the tree must be left to live and. bl'O') •

• is rOi.:..:..rcl13 t}lC Yalu.etion, I find it impocsible to accept the VJ,lu.,:;
finally. and nOH, put on theac tree::; ':Jy the plaintiff. Abdel :3<.:.3it Eff'.r
for the plaintiff, has described to we clearly and s'Uceiflctty :;::.13 u+eps
by Hhich the figures 20 P.T. for the large trees and 10 P.T. for t:he
small t rces woz-o reached. 'l'IJ.e oriGinal board of Hazir, Omda , and Sheikh
l~ent no higher than 5 P.T. for the lar~ and 2t, P.T. for the small. It
was the Assistant District Commissioner, Ber'ber, who of his own accord
raised it tO,lO P.T. an", 5 P.T. respectively, and uho on the Governor's
instructions, in effect, raised it apin to 20 P.T. and 10 P.T. The
Governor appears to have based his instructions on the future value of
the trees. He 1'/rites, "This value is not the value as cut down, but as
trees \-/hich provide every year .zaaf^t for basket making, et c ••• "

On the other hand, it is clear from the evidence of the board t:1B.t
they considered that. in particular, the estimate of 2i P.T. for the
"small trees,". which appear to ha.vlbeen little more tha.n small pieoes
of wood, was if a.nything an over estimate. And Nazir Ayobey called. by

ze :::r. ~ec~ioa~ stated. i::.at his esticai;e for the bi~ and. small
trees as based on their future value and that none of them at the time
they were cut down were of the sli~htest use.

I am inolined to accept the estimate of the Uazir, Onxia, and Sheikh.

Not only because it is the estimate of persons particularly qualified to
speak, and of persona who went to the land specifically to make an es'timate
of the value of the trees, but also because, on the evidence of Omda

Mohalllmed MahIlloud, a lar~ number of the so-called "small trees" were not
trees a t all, but small bits of wood that should never in fact have been
listed as "trees" at all. The terms "full ~01mt""dom palms," and young

"dom palms" would appear to be <,l. description wh i.ch is not wholly accurate

and is misleadin€. In addition, I believe that had th~ defendant applied

for permission to cut down the trees to clear the land, t~:;r:.1 . .'nin~ other
factors such as oorreot reGistration and details of Ol-1l1ership, or possession,
t o have been in order, he uoul.d , particularly under the circumstances
e:x:istin~ at the time (.A:uguct 1943), have obtained the necessary permission

\~i thout diN'icul ty. . In oident ally , I note that the Sheikh of the villa~e
states t:lat the wood, "l'lhich :'iaS left lying around by defendant, was removed
b~ the villagers ther.~elvesj so it may be assumed that they, the persons

vlho ori.;-inally cOlilplained, have derived some benefit fro:n it.

l-'inally, as r9ga.rd~.; the questioll of the "inalienability" of the rights
oVer So.gia no. 23 (0) Sidir, lJegib Eff • .t..bdulla, the Assistant Registrar

of Lands t~G heard. in explanation of his land ree;istration certificate
(dated p~l'U.al'Y' 27, 1944) I~hich he doscribes, as it stands at present, as
misloading. l~or the O"l'lners of the rights in Sagia 23 (C) are described

ll.l3 tho ovtners o:f Sa.gia 23 (A); a.nd the ouners of 23(A) are shewn as in-
cluding defendMt Ahmed Abde1 Hadi. But karu rights (vide parat;ra.ph 5

of Mr. Tippets General Ka.l~ 'eci~icn of November 24, 1907) are desoribed

in effect as inheritab14 but ~tl~rwise inalienable. Ne~ib Eff. considers
therefore that his land re~istration certificate should have shown the
owners of the ri€hts in Sa~ia. 23 (0) as those persons who Were the ori~inal
owners of Sa!ia. 23 (A) at the time of the Tippets Settlement in 1907(&0
shown on the reveree of the land registration oertificate), in that thes&.
persons, even thou~ they or their heirs can sell or dispose of their

land in 23 (A), OWl never sell or dispose of their ri€hts in 23 (0)

(except on inheritance).

, The defendant argues in reply that as he has purchased the land in
Sa!;ia.23 (A) Sidir he has acquired ri~hts as an owner in Sat;ia 23 (A)
over sat;ia 23 (C) Sidir. This point was never laid before the Governor,
nor the Adv0o;te-Generalj for when the land registration certificate

was first made out, the note on the reverse was not included, and clearly
the Advocate-General had no kn0\4l~dge of how or when defendant acquired
land in Sat;ia 23 (A), and has baaed Ilis claim on the understanding that
defendant was in the same position as the other owner-s of Sat;ia 23 (A)

and was entitled as owner of Sagia 23 (A) to rights over Sat;ia 23 (C)

(vide Parat;raph 3(b) and 3(d) of the plaint). Had the Advocate-General
been ·informed of the special position of defendant, he might have submitted
his plaint in a varied form and put f'or-vard further arguments on this
specific poin.t. I comdr!.er the case should be de c ided , and I have given

my judt;ment accordingly on. the grocmds originally put forward by the

plaint iff, and the defence thereto , exclusive of the quest ion i~hether
defendant has any right at all on or over the land 23 (C) L'1·view of his
not being an original cwner (at the time of Settlement) of 23 (A) or the
heir of an original owner ,

I consider therefore that the dnfendant had no right or authority

or permission to cut d own the trees on the plaintiff's land 23 (C) Sidir
and that the defendant should pay damages to the plaintiff at the rate
originalJ,y estimated by the nazir, the Omda and the Sheikh, that is, .at

5 P.T. fp.r the III "big" trees and 2~' P.T. for the 428 "small" trees,
~, a total sum in. damages o;_~ LE.16.250m/ms and that he should pay costs
on this amount at LE.I.85Qm/ns, in GIl a sum of LE.18.10qm/ms.

Decree aCCOrdingly},

Revision

The first question in this case was

whether the defendant had any right to cut down the trees in the Govern-

mentes sa€ia. He claimed to have this right by virtue of ownin€ land in
a neighbourb€ sagia. The learned Judte of the Hi~ Court found that no
owner of land in the neithbourint sagia had any right to cut the trees
in the way defendant did and so it was unnecessary to find what rights
defendant had in that sagia. We entirely atree with tha.t decision and
for the rea.sons €iven in the jud~eIlt.