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DURAMANI NGELEGLA
V.
TRIBAL AUTHORITY NONGOWA CHIEFDOM
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
12TH DAY OF JUNE, 1953
APPEAL NO. 4/53
2PLR/1953/57 (WACA)
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OTHER CITATION(S)
2PLR/1953/57 (WACA)
(1953) XIV WACA PP. 325-327
LEX (1953) – XIV WACA 325-327
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
SMITH, C.J., SIERRA LEONE
COUSSEY, J.A.
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BETWEEN:
DURAMANI NGELEGLA – Appellant
AND
TRIBAL AUTHORITY NONGOWA CHIEFDOM – Respondents
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ORIGINATING COURT(S)
Appeal by the plaintiff:
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REPRESENTATION
J. B. Marcus Jones — for Appellant
S. A. Benka-Coker, Acting S.-G. —or Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY:- False imprisonment— Onus of proving legality – Relevant considerations
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PRACTICE AND PROCEDURE ISSUE(S)
COURT:- Courts Ordinance, section 40 — Bona fide acts in judicial capacity. Tribal Authority Ordinance — Notice of intended action — Section 19(2) of the Ordinance — Lack of notice not pleaded — Rules of Court, Order 16, rule 1.
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CASE SUMMARY
The action was for damages for assault and false imprisonment, against the Tribal Authority, whose agent, the Paramount Chief, ordered the plaintiff into custody; later he was taken before the Native Court, which sentenced him to imprisonment. He claimed both in regard to the detention before the trial and to the imprisonment after conviction.
In the defence the detention before the trial was denied (but counsel admitted the arrest, in the course of the case) and it was averred that the Paramount Chief had acted judicially in summoning the plaintiff before the Native Court, which also acted judicially, and section 40 of the Courts Ordinance was invoked (which protects bona fide acts performed in a judicial capacity).
At the close of the case for the plaintiff counsel for the defence made a submission that there was no case; and the trial Judge dismissed the action on the ground that it had not been proved that the Native Court lacked jurisdiction; he also held that the plaintiff had failed to prove malice and that the evidence showed that the defendants had acted judicially.
The plaintiff appealed, and the defendants (as respondents) repeated a submission (rejected by the trial Judge) based on section 19(2) of the Tribal Authority Ordinance (Cap. 245) (text in judgment infra) that notice of the intended action had not been given. The plaintiff relied on Order 16, rule 10 (text in judgment infra), which implies the performance of conditions precedent, unless expressly contested — which was not done in the defence put in below.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal; and remitting the case for re-hearing in part) that:
(1) The action was against the Tribal Authority; the first arrest, which was admitted, was its ministerial act, and therefore the Tribal Authority ought to have been called upon to justify the detention before the trial;
(2) In so far as the action related to imprisonment after conviction, an action against the Tribal Authority did not lie.
(3) In view of Order 16, rule 10, want of notice under section 19(2) of the Tribal Authority Ordinance not having been specially pleaded, this defence was not available.
Cases cited:-
(1) Crater v. W.A. and R. J. Jacobs, 1920, 1 Ch. D. 567.
(2) Yaskey v. President, etc., of Freetown, 1 W.A.C.A. 141.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
In this appeal, probably owing to the form of the pleadings, the argument has flowed into the field of an action against the panel of a Native Court but it remains, as the endorsement on the writ shows, an action for assault and false imprisonment against the Tribal Authority.
The plaintiff’s case is that he was unlawfully arrested without warrant by the Tribal Authority. He sued the Paramount Chief as well as the Tribal Authority of Nongowa Chiefdom on the assumption that, as the chief officer of the Tribal
Authority, who, it is claimed, carried out the arrest, the Paramount Chief was severally liable together with the Tribal Authority in trespass. In the course of the trial, however, it was realised that the Tribal Authority is the principal and the Paramount Chief its agent, and the action was, with leave, abandoned as against the first defendant.
By his statement of claim the plaintiff averred that on the 12th October, 1950 when he answered affirmatively to an enquiry that he, the plaintiff, was signatory to a petition to Government complaining of mal-administration of the Nongowa Chiefdom, the Paramount Chief ordered him into custody and that he was detained from the 12th to the 14th October when he was taken before the Native Court, convicted and sentenced to 6 months’ imprisonment, of which term he, however, served only three days as the acting District Commissioner then reviewed the proceedings and caused the plaintiff to be released from prison on the 17th October.
For this imprisonment which he claims was unlawful the plaintiff claims damages.
The defence filed, which by its title heading accepts that the Paramount Chief and the Tribal Authority are one and the same entity (see the definition in section 2 of the Tribal Authority Ordinance (Cap. 245) ) denied the detention of the plaintiff from the 12th to 14th October and averred that the Paramount Chief acted judicially and within his jurisdiction in summoning the plaintiff on the 14th October to appear before the Native Court and that the Native Court acted judicially on that day in trying and convicting the plaintiff on charges of holding secret meetings to create political upheaval in the chiefdom, telling people that political trouble was corning to the chiefdom and inducing people to join the plaintiffs movement against the defendants.
By paragraph 7 of the defence the defendants claimed that each member of the Tribal Authority acted in the belief that they had jurisdiction to summon the plaintiff to appear on the said charge and to try the plaintiff. The defendants invoked section 40 of the Courts Ordinance (Cap. 50) as affording protection for their acts. That section, as far as it is relevant, is in respect of acts bona fide performed by persons acting in a judicial capacity and would apply if the members of the Native Court were sued. That the defendants were acting bona fide was put in issue by the plaintiff’s reply but this again was as to the judicial act of the Native Court whilst the other issue, as will be shown presently, is as to the ministerial acts of the Tribal Authority.
The defendants denied any detention from the 12th to the 14th October. They have not pleaded in the alternative that if there was any detention on those dates, it was lawful.
As the trial proceeded this important fact appears to have been overlooked and the action was treated as bringing into issue the judicial acts only of the Tribal Authority or the Native Court as distinct from the ministerial acts of the Tribal Authority. That there is a distinction between the functions of a member of a Native Court who is also a member of the Tribal Authority is illustrated by section 12 of Cap. 245, which provides that a Native Court is not precluded from trying an offence under the Ordinance owing to the fact that it is in breach of an order, etc., made by a member of the Court as a member of the Tribal Authority. In support of the statement of claim the plaintiff testified that he was arrested by the Tribal Authority, i.e. the Paramount Chief, and put into a lock-up and tried three days later by the Native Court. At the close of the plaintiff’s case his action was dismissed by the learned trial Judge on the ground that it had not been proved that the Native Court lacked jurisdiction. The learned Judge also held that the plaintiff had failed to prove malice and that the whole of the evidence showed that the defendants had acted judicially.”
From this dismissal the plaintiff appeals.
Having heard the submissions it is clear to me that the action against the defendant in respect of the prosecution of the plaintiff and his imprisonment after conviction is misconceived. At that stage an action for malicious prosecution or for false imprisonment against the panel of the Native Court may lie but not for false imprisonment against the Tribal Authority. As to the first part of the claim, before his no-case submission, counsel for the defendants had admitted the arrest of the plaintiff. On the evidence before the Court it was for the defendants at that stage to justify the arrest and detention from the 12th to 14th October, for the first arrest was not the ministerial act of a Court of Justice, but of the Tribal Authority.
In my opinion the appeal must therefore be allowed so far as it dismisses the plaintiff’s claim without calling upon the defendants as Tribal Authority to justify the first imprisonment, and that part of the judgment is set aside and the action is remitted to the Court below for the defence to be heard or for a re-hearing.
Mr. Berum-Coker, for the respondents, has repeated a submission which was rejected by the learned trial Judge on the ground of waiver, namely that the action should not have been entertained by the Court in that section 19(2) of Cap. 245 had not been complied with. That section provides:-
No suit shall be commenced against a Tribal Authority until three months at least after written notice of intention to commence the same shall have been served upon the Tribal Authority by the intending plaintiff or his agent. Such notice shall state the cause of action, the name and abode of the intending plaintiff and the relief which he claims.
Mr. Marcus Jones, per contra, has referred to Order 16, rule 10 of the Sierra Leone Rules of Court and to the similar English rule which is Order 19, rule 14 and to the case of Crater v. W. A. and R. J. Jacobs (1).
Rule 10 of the local Order 16 provides:-
Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant (as the case may be); and subject thereto, an averment of the performance or occurrence of all the conditions precedent necessary for the case of the plaintiff or the defendant shall be implied in his pleading.
The language of section 19(2) of Cap. 245 is imperative and would appear to debar a Court from entertaining a suit instituted without compliance with its provisions. The object of notice is to give the defendant breathing time so as to enable him to determine whether he should make reparation to the plaintiff.
In this case the defendants have not pleaded that this condition precedent to action had not been performed. There is nothing to prevent the defendant from waiving the notice or from being estopped by his conduct from pleading the want of it at the trial. On consideration, the point appears to me to be expressly governed by Order 16, rule 10. As it was not contested by the defence filed it must be implied that the requisite notice was given, and I would further hold, on the authority of Yaskey v. The President, etc., of Freetown (2), that the defence of want of notice is a special defence which must be specially pleaded to entitle the defendants to the benefit of the section.
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FOSTER-SUTTON, P.
I concur.
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SMITH, C. J.
I concur.
Appeal allowed; case remitted for re-hearing in part.
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