Tort-False
imprisonment-Defence of lawful
imprisonment-Onus on defendant.
Appeals in Civil Cases-Mistake
on onus affecting view of
evidence. Native Court-1Hember a
party. to suit-Decision of Court
vitiated.
The plaintiff
claimed damages for assault and
false imprisonment. The matter
arose thus:-
The
defendants, who were the
Paramount Chief and a member of
the Tribal Authority, offered
the plaintiff money to vacate
his house as the land had been
leased to someone, but he
refused. Then one L.M., also a
member of the Tribal Authority,
sued him for possession. Before
the day of hearing in the Native
Court, the defendants and L.M.
demised the land by lease. At
the hearing, according to the
record, L.l\I. sat as a member
of the Court; judgment was given
in favour of L.1\I. for
immediate possession. Some (lays
later the present plaintiff was
taken and detained, for which he
sued the defendants as stated.
Their defence
was that the imprisonment was in
lawful execution of the judgment
of the court. They alleged a
second sitting of the Court at
which the plaintiff was defiant
and ordered to be detained. But
of this there was no record ..
The trial
Judge proceeded on the
assumption that it was the duty
of the plaintiff to prove that
the imprisonment was unlawful,
and not being satisfied that the
balance of probability on the
evidence was in plaintiff's
favour, gave judgment for the
defendants. The plaintiff
appealed.
Held:
(1) The trial judge
proceeded on the wrong
assumption that it was ·for the
plaintiff to prove that his
imprisonment had been unlawful;
this assumption affected his
view of the evidence, and it
would have to be reconsidered.
(2) The onus
was on the defendants, who
admitted the imprisonment of the
plaintiff, to prove that it hall
been lawful. But in fact there
was no further order of the
Native "C Court and the
imprisonment was unlawful.
(3) Further,
a party to a suit cannot also
act as judge in it; if he does,
the decision of the whole Court
is vitiated. As the party suing
the present appellant for
possession sat as a member of
the Native Court hearing his
suit, the judgment· was void and
the defendants could not justify
the imprisonment.
Cases cited:-
(1) In re
Moulton: Graham v.
Moulton, 22 T.L.R., p.
380, at p. 384. (2) Frome
United Breweries v. Bath
justices, 1926, App. C.,
586. Appeal by plaintiff:
No. 17/51.
j. B.
Marcus-Jones for Appellant.
M. C.
Marke for Respondent.
The
following judgment was
delivered:-
Coussey, J
A. At the conclusion of the
argument the Court allowed the
plaintiff's appeal, set aside
the judgment of the Court below
and entered judgment for the
plaintiff against the defendants
with costs. The parties by their
Counsel agreed that damages of
£100 be awarded the~ plaintiff
against both defendants jointly
and severally and it was so
ordered.
The claim
against the defendants was for
damages for assault and false
imprisonment. The facts,
substantially undisputed, and
found by the trial
[pg 18]
Court are that the
plaintiff, a carpenter, was some
"time in April, 1950 informed by
the defendants, who. are
respectively the Paramount,
Chief and a member of the Tribal
Authority of 130, Kakua Chiefdam,
that the land on which his house
at 130. stands had been
leased by the Tribal Authority
to. a Syrian and he was
offered a sum of money
to. vacate the land. The
plaintiff refused the offer to.
vacate. Shortly after, Lahai
Margaa, also. a member of
the Tribal Authority, instituted
an action in the Native Court
presided aver by the
first defendant as Paramount
Chief against the plaintiff for
recovery of possession of
the house in question and £100
as compensation. The Writ was
issued an the 25th April and was
returnable on the 10th May.
Before the return date, to. be
precise, an the 3rd May, the
plaintiff wrote to the
District Commissioner, South
'Western Province, applying
far an Order far the
transfer of that suit to the
Magistrate's Court on the ground
that the first defendant was
already biased in the matter and
that he and the plaintiff Lahai
Margao had, before the action
was taken, requested the
plaintiff to. vacate the
house. This application far
transfer was not granted.
That there was same ground
far it is revealed by the
fact, which is now not disputed,
that an the 1st May, 1950 the
first defendant as Paramount
Chief and second defendant and
Lahai Margaa and three others
acting together as the Tribal
Authority had, far
valuable consideration,
purported by lease to.
demise land which included a
portion of the land on which the
plaintiff's house stands, to.
the Syrian Elias Abda Zaidan.
Margao, the
plaintiff in the suit alleged
that the house had been given to
the plaintiff-appellant to.
occupy as a caretaker by
Margaa's father and a brother
who. was a predecessor of the
first defendant as Paramount
Chief and he sought to.
recover possession an the ground
that the plaintiff now claimed
to. be owner of
the house and had failed to.
give the plaintiff Margaa
the customary respect due to.
him by Native. Law.
The Native
Court was under a duty
imposed by section 26 of
Cap. 149, the Native Courts
Ordinance, to. keep a
Minute Book and to.
record. therein, inter alia,
(1) the names of the
President and members of the
Court present, (2) the
nature of the suit, (3)
the amount of fees 0.1'
casts, (4) the judgment given
and (5) the President of
the Court should sign 0.1'
make his mark at the foot
of the page in which such
judgment shall have been
entered.
The
requirements 1, 2, 3, and 4
supra were observed, but the
judgment is not signed or marked
by the first defendant who. was
the Presiding Chief.
The record
shows that the plaintiff Lahai
Margaa himself sat as a member
of the panel and it is idle for
the defendants to.
allege, as they do, in the face
of the record and of the
plaintiff's evidence on the
point, that Margaa did not sit
as a member of the Court.
The learned Chief Justice did
not come to. an express
finding an this point,
contenting himself by remarking
that" if an the other
hand Lahai Margao did sit as a
Judge in his awn case, a
flagrant breach of one
of the basic principles
of the administration of
justice was committed". A:, set
out below we are clear that this
breach is fundamental so.
as to. vitiate the
proceedings.
The record
shows that the case was
concluded and judgment entered
on the 10th May, 1950, in the
terms that defendant (the
present plaintiff-appellant)
should give a compensation of
£25 to. the plaintiff (Margaa)
and give up possession of the
house forthwith.
For
nine days (the defendants say
six days) the plaintiff was
confined in the first
defendant's lack-up; and the
issue is whether this
imprisonment was in pursuance of
an Order of the Native Court
to. enforce the judgment
or at. the direction of
the defendants acting
arbitrarily and far their
awn. ends and not in lawful
execution of the judgment
of the Court.
The learned
Judge observed early in his
judgment that the defendants
admit [
pg19 ] the imprisonment,
but allege that it was done in
lawful execution of the
judgment. ".
After, however, reviewing the
evidence as to the proceedings
in the Native Court and
observing that the task of
showing that the imprisonment
was unlawful should be
comparatively easy, and here the
learned Chief Justice apparently
overlooked the fact that the
burden was not upon the
plaintiff .to establish that his
imprisonment was unlawful, but
upon the defendants to justify
the' imprisonment, he found
that the plaintiff was
untruthful as to the terms of
the Native Court judgment,
whether the plaintiff was
ordered to comply forthwith with
the judgment or was given time
to do so, and the learned Judge
concluded his judgment as
follows:-
" The onus is
on the plaintiff to prove his
case and if he is to succeed he
must produce an effect in my
mind that the balance of
'probability is in his favour,"
and he held
that the plaintiff had failed to
discharge this burden"
notwithstanding the errors and
deficiencies in the record of
the case before the Native Court
and some untruths told by the
defendants and their witnesses
".
With respect,
the learned Chief Justice in our
opinion approached the facts
upon a wrong view as to the onus
of proof. In In re Moulton,
Graham v. Moulton
(1),
the Master of the Rolls said;-
.
We are aware of the great weight
properly attributable to the
opinion of the Judge who has
seen and heard the witnesses;
but an appeal is a rehearing,
and we cannot avoid the
responsibility of forming a
judgment on the matter for
ourselves. If it should appear
that there was a misapprehension
on the part of the Judge as to
what the antecedent presumptions
were, and where the onus of
proof lay, it might seriously
affect the weight of his opinion
as to credibility of witnesses.
Their story may be probable or
improbable, according to the
view taken as to what they must
be presumed to have thought
about the matter. Now, with the
greatest deference to the
learned and careful Judge who
tried the case, we cannot help
thinking that this disturbing
factor is present in this case."
In the case now under review, if
it is borne in mind that the
burden was upon the defendants
to justify the imprisonment we
find that the defendants' story
of a sitting of the Native Court
on the 18th May cannot be
reconciled with the Minute Book
of the proceedings which shows
that the case was disposed of on
10th May. If there was a further
sitting of the Court on the 18th
Mayas is alleged to deliver
judgment then, in compliance
with section 26 of Cap. 149
already referred to it would and
should have been recorded. There
is no such record and the only
reasonable conclusion from that
omission is that judgment. was
in fact delivered on the 10th
May and that there were no
further proceedings or order in
the suit. Then the defendants
have failed to explain why, upon
judgment being delivered on the
10th May (on which date we must
hold on the evidence admissible
it was delivered) if the
defendant then and there defied
the judgment, and declined
immediately to observe its terms
as the defendants allege, he
"'as not immediately imprisoned
to enforce it. How is the
interim period of inactivity on
the part of the Native Court
explained? It seems to us to
follow that the imprisonment was
not upon a lawful order of the
Native Court for there was in
fact no further order of the
Native Court, and the defendants
have failed to justify the
plaintiff's detention which, on
the evidence, was brought about
by them and not by the Native
Court and was therefore
unlawful.
On this view of the case which,
in our opinion, is the
correction, there was no onus on
the plaintiff to establish the
illegality of his imprisonment
and the question whether his
version of the period of grace
which he alleges was allowed
[ pg 20 ]
him by the Native Court,
as distinct from the t\,O
defendants, to satisfy the
judgment is immaterial to the
real issue
