Land in the Sierra Leone Protectorate-Long continued possession by non-native with consent of Tribal Authority-Claim that such possession had riPened into absolute ownership-Defiance of Paramount Chief's authority-Forfeiture by non-native of all Ms interest in the land as a result of such de finance.

In the year 1892 the defendant, who came from the Colony of Sierra Leone and was not a native of the Protectorate, was granted about 37 acres of land at Bo in the Sierra Leone Protectorate by the then Paramount Chief of the Bo Chiefdom for purposes of cultivation. Part of this land the defendant sub-let for building purposes contrary to the terms of his grant, and. some disputes between him and the Paramount Chief for the time being arose in or about theyear 1904 which were eventually settled by the then Governor. The terms of settlement were embodied in a letter dated the 11th of January 1905 and addressed by the Governor to the defendant, and so far as material to the issues raised in this case those terms read as follows :-" The land in question was granted to you by the Chief and repr~ntative men for the purpose of cultivation. It follows that the land will remain your property so 10Q.g as you cultivate it in accordance with the conditions as to cultivation subject to which the land was granted.

" At the time of the grant you contracted a marriage in accordance \tith native law with the daughter of the Chief, and as a result the Chiefs will on your death recognise the right of the children by this marriage to succeed to the lanq. The native custom does not permit of your sub-letting the land and consequently you have no right to do so." From the date of this letter the defendant remained in possession of the land, and apparently on good terms with the different Paramount Chiefs who succeeded one another at Bo, until the year 1926 though he cOl1tioued to sub-let parts of the land to other non-natives for building purposes contrary to the terms of his grant.

In the year 1926 the plaintiff became Paramount Chief of the Big Do Chiefdom, and disputes quickly arose between him and the defendant in relation to this ~d which finally culminated in the defendant putting forward a claim that Govehtptent had given him the land and that the Paramount Chief had no right to widen a country road which passed through it.

The plaintiff thereupon brought an action in the Sierra Leone Circuit Court claiming the land in question from the defendant and obtained judgment in his favour, but in March, 1930, the West African Court of Appeal or!Jer~d a re:-tr al. The case was accordingly re-tried before Tew C.J., who gave judgment in favo11I: of the plaintiff on the 5th of March, 1931, basing his decision on the ground that the defendant had, by flouting the authority of the Paramount Chief, been guilty of conduct which rendered all his rights in the land liable to forfeiture. On appeal it was argued that the native custom proved before the trial Judge was a custom to drive away any non-native who flouted the authority of a Paramount Chief, and that as the defendant had not been driven away the custom had not been enforced and he remained in lawful possession of the land in question.

Held, that the plaintiff had adopted reasonable and sensible means of enforcing his claim, aad that the Court below was right in finding that the defendant had, b)' natiVe law and custom, forfeited his rights in the land.

 

 

Appeal Court 10 Oct., 1932

 

 

225

226

Kamanda Bongay

v.

F. S. Macauley

Kingdon, C.J.

 

 

Kamanda Bongay v. F. S. Macauley.

Per Macquarrie,.Acting Chief Justice of Sierra Leone: (1) The promise in the Governor's letter of the 11th of January, 1905, that the defendant's children should succeed him did not operate so as to render native law and custom inapplicable to his tenure of the land. (2) The Paramount Chief had an undoubted right to go on the land for the general good of the community, as a proved native custom and a one of the conditions of the defendant's grant.

S. ]. S. Barlatt for the Defendant-Appellant. C. J. Kempson for the Plaintiff-Respondent. The following judgments were delivered:-

KINGDON, C.]. NIGERIA.

This is an appeal from a judgment of the Circuit Court of the Sierra Leone Protectorate dated the 5th March, 1931, making an order in plaintiff's favour for possession of two areas of land situate near Bo in the Big Bo Chiefdom in the Central Province of the Protectorate.

The writ of summons is dated the 9th February, 1927, and at that time the plaintiffs were" Kamanda Bongay, Paramount Chief of the Big Bo Chiefdom, for himself and on behalf of the Tribal Authority and Gbogba and Lassana, land owners." At the trial which ensued judgment was given in plaintiffs' favour, but the Court of Appeal ordered a retrial which began on the 22nd January, 1931. It is from the judgment in that re-trial that the defendant now appeals. At the outset of the re-trialthe plaintiffs' Counsel informed the Court that the plaintiff Lassana was dead and asked that both second and third plaintiffs be struck out. There was no objection from defendant's Counsel and the Court ordered accordingly. In the present action therefore Kamanda Bongay sues alone as " Paramount Chief of the Big Bo Chiefdom, for himself and on behalf of the Tribal Authority."

I t is to be noted that the trial was a summary one and consequently there were no pleadings, but it is to be regretted that the points in issue between the parties were not more clearly ascertained, defined and recorded at the outset of the trial, for it seems that the points upon which the learned Chief Justice based his decision in the Court below only emerged as the real points in issue at a fairly advanced stage of the hearing.

The b~sis of the decision is that-

"The defendant has, by flouting the authority of the Paramount Chief, both in the matter of his tenants and by hi~ claim, expressed and implied, to the absolute ownership of the land, culminating with his interference with the road, been guilty of conduct which renders all his rights in the land liable to forfeiture."

But in the particulars of claim there is not a word to suggest that the claim to recover pos3ession was founded upon allegations of misconduct by the defendant involving forfeiture of his rights. They read as follows:-

"The plaintiff demands of you possession of two areas of land situate near Bo in the Big Bo Chiefdom, Central

Kamanda Bongay v. F. S. Macauley.

Province, Sierra Leone Protectorate, description of which are hereunto annexed.

" The plaintiffs are entitled to the said lands as forming part of the Big Bo Chiefdoms aforesaid.

" The said lands are in the possession of the defendant."

Further, when plaintiff's Counsel opened his case he failed to make it clear that the question of the propriety or otherwise of defendant's conduct was a straight issue in the case. However this emerged clearly as the case proceeded, and I do not think there has been any substantial miscarriage of justice as a result of the issues not being earlier defined.

It is admitted in the writ of summons that the defendant was in possession of the lands claimed. The history of the defendant's occupation of the lands is a long one and is fully set out in the judgment of the Court below, so that it need not be recapitulated here. But the salient facts are that the defendant's occupation was in accordance generally with native law and custom, and at the same time was subject to some special and unusual features.

The terms of the occupation are set out in a letter Exhibit" J " dated the 11th January, 1905, addressed to the defendant and signed by the Governor himself, which records" complete agree­ment" on the subject. It may be noted in passing that the letter speaks in paragraph 2 of " your proper;ty " and in paragraph 6 d " your land," and in paragraph 3 recognizes the right of defendant's children by his wife, the daughter of the Chief, to succeed to the land. The defendant's intere!>t on the land was therefore something more than a mere life interest.

We have, then, the position that the defendant is in lawfu~ possession of the land and is entitled to quiet enjoyment; the plaintiff, to succeed in his claim, must show that the defendant's right to possession has been lost. \,\ hat are the findings of the Court below upon which it bases its decision that the defendant has forfeited his rights? The basis of the decision is twofold, viz.:--

(a) The finding of fact that the defendant has flouted the authority of the Pa.ramount Chief, and

(b) the holding that by native law and custom the plaintiff has by mere flouting forfeited his rights in the land.

As to the first, I think that some of the matters relied upon by the plaintiff should be given little or no importance. The first of these matters are the occurrences prior to the " complete agreement" arrived at in 1905 and evidenced by Exhibit" J ". I do not think it was proved that those occurrences included any misconduct on the part of the defendant. It is difficult now to ascertain what actually occurred, but whatever it wa", any trouble was completely and finally settled at the interview from which Exhibit " J " resulted, and these long past events should not now be raked up against the defendant.

 

 

227

I(amanda Bongay

v.

F. S. Macauley

Kingdon, C.].

228

Kamanda Bongay

v.

F. S. Macauley

Kingdon, C.].

 

 

Kamanda Bongay v. F. S. Macauley.

The second is the matter of the sub-letting by the defendant of part of the lands subsequent to the date of Exhibit" J " and before the succession to the Chieftaincy of the present plaintiff. In Exhibit "J" the defendant was expressly informed "The native custom does not permit of your sub-letting the land and consequently.you have no right to do so" ; and he admits that he has suh-Iet in spite of this warning. At first sight this appears to tell against him. But, when the circumstances of the sub-letting are examined, not at all heavily. There can be no doubt that whatever the defendant did in the way of sub-letting was done with not only the knowledge and consent but also the active co-operation of the plaintiffs' predecssor. The defendant's evidence showing this is :-

•• I built more houses and let them, as the plantation was extending.

I continued building houses. No Paramount Chief has ever questioned my right to build houses-they assisted me to build them-Bojamu, Bamba son 01 Otoguah, l-essima, Regent Lemor, Boima, assisted me by supplyicg labour."

•• The Chiefs assisted me to build these six or seven houses- I did not pay the labourers-they cost me something-the labourers were supplied hy the Chief. I gave the Chief friendly presents."

There is no evidence to contradict this and it must be accepted.

I cannot subscribe to the proposition that the Chief's authority is flouted by an act in which he is a cordial co-operator, and I cannot agree that the defendant's act of sub-letting amounted to misconduct.

But when we come to the occurrences subsequent to the plaintiff's succession to the Chieftaip~y, it is a different story. It is evident that on his succession he set about seeing after the affairs of his Chieftaincy with energy. He inquired into the matter of the land in the occupation of the defendant. He wanted to know about the settler's fee and the sub-letting of the houses. But he could get no satisfaction from the defendant and was merely met by the assertion that the land belonged to defendant. I think it is clear that during this period the defendant failed to pay proper respect to the Paramount Chief and set up a claim in defiance of customary law. It may have been natural and almost excusable that the defendant should do so, for his long and unquestioned quiet enjoyment may well have led him to regard the land as his. But then came a more serious matter; the Chief started to widen a so-called road, which can really have been little more than a bush -track, which passed through'the land occupied by defendant. In doing this the Chief was clearly within his rights by native custom. But he was met by active interference and defiance by the defendant, who repeated with emphasis, his claim to the land as his own, definitely disputed the Chief's right to work on the road, and publicly advertised his definance of the Chief by planting young trees across the road that all might see and know that he meant to contest his claim.

Kamanda Bongay v. F. S. Macauley.

This brought matters to a head; the customary law of the land was definitely challenged. The Chief must either take action to uphold his own rights and those of the community, or he must suffer humiliation and betray his trust. He very properly chose the former course and brought this suit. The claims put forward by the defendant subsequently to the commencement of this action and at the trial itself cannot, of course, be used to found the present cause of action, but they may be legitimately used to show the signi­ficance of the claim he made previously.

I am of opinion that the attitude and actions of the defendant towards the plaintiff since the plaintiff's succession to the Chieftaincy, culminating in the "road" incident, are snch as to justify the defendant being held guilty of misconduct and so liable to be dealt with under native law and custom.

And this brings me to the second point forming the basis of the decision of the Court below-How was the defendant liable to be dealt with under native law and custom? and is the decision that by native law and custom defendant has forfeited his rights in the land correct ?

This point presents some difficulty because all the evidence given as to the custom tends to show that it consists in " driving away" the offending settler, and that such " driving away" may be not only from the land but from the Chiefdom; and Counsel for the defendant has submitted that the forfeiture of rights over land is only consequential upon such driving. His contention is that tmly the proper native authority can take this action for expulsion, and that unless and until that has been done the question of forfeiture does not arise. I t is not competent for the Courts to whittle down a custom into something less than the custom itself. He relies upon the folJowing dictum of the Judicial Committee of the Privy Council in the Nigerian Case of Eshugbayi Eleko v. The O..tficer Administering the Government of Nigeria and another (1931) A.C. at page 673 :-

" An interesting question arose at the hearing as to the modification of an original custom to kill into a milder custom to banish. Their Lordships entertain no doubt that the more barbarous custom of earlier days may under. the influences of civilization become milder without losing their essential character of custom. It would, however, appear to be necessary to show that in their milder form they are still recognized in the native community as custom, so ~s in that form to regulate the relations of. the community inter se. In other words, the Court cannot itself transform a barbarous custom into a milder one. If it still stands in its barbarous character it must be rejected as repugnant to natural justice, equity and good conscience. I t is the assent of the native community that gives a custom its validity, and, therefore, barbarous or mild, it must be shown to be recognized by the community whose conduct it is supposed to regulate."

 

 

229

Kamanda Bongay

v.

F. S. Macauley

Kingdon, C.].

230

Kamanda Bongay

v.

F. S. Macauley

Kingdon, C.].

 

 

Kamanda Bongay v. F. S. Macauley.

Counsel for the defendant points out that in the present case no native authority has in fact expelled the defendant either from the Chiefdom or the land. and consequently he contends the custom has not heen enforced and the defendant remains in lawful possession.

The argument is not \\ithout its points. but I have Come to the conclusion that it is really splitting hairs. The right to expel from the Chiefdom must include the right to expel from the land­a small part of the Chiefdom. In this case the question of physical expulsion did not arise because the defendant was not actually living on the land. It might have strengthened the plaintiff's position if prior to taking action he had formall~ notified defendant that he was expelled. But the Courts should look with favour upon a party who seeks to avoid a breach of the peace by coming to the Courts for an order in preference to taking the law into his ONn hands. I think tpat the plaintiff has adopted reasonable and sensible m~ans to enforce his claim. and that the finding of the Court below that by native law and custom the defendant has forfeited his rights in the land is correct.

But as was pointed out by this Court (differently constituted) when the appeal from the first trial was considered by it, the plaintiff must succeed by the\ strength of his own title and not by the weakness of the defendant's.

I think it is to be regretted that more specific evidence was not led on behalf of the plaintiff at the retrial to prove the custom that, when land in a Chiefdom is forfeited, it automatically reverts to the community and the Chief. as representing the community, is entitled to resume possession and to re-allot if desired.

However, there seems to have been no question in the Court helow but that this was the c11stom, and the Court seems to have treated it as one of those customs which (in the words of the Privy Council in the Gold Coast case of A1e'gu v. Attah in 1916) "have by frequent proof in Court become so notorious that the Courts take judicial notice of them." The absence of such evidence has not been made a ground of appeal, and I am not disposed to interfere with the decision of the Court helow on account of it.

Upon the other points which have been raised as grounds of appeal I am in agreement with the views which have been expressed by my learned Brother, the Acting Chief Justice of Sierra Leone, in his judgment.

The further point raised by this Court as to the failure of clefen<1a~t to register his title under section 15 of the Protectorate Lands Ordinance, 1927, can also be dismissed since the defendant is plainly safeguarded by the terms of section 10 (2) (e) of the Interpretation Ordinance, 1924.

I am of opinion that the appeal should be dismissed and the judgment of the Court below affirmed with costs.

BEHKELEY, J.

I concur.

Kamanda Bongay v. F. S. Macauley.

MACQUARRIE, ACTING C.]. SIERRA LEONE.

This is an appeal against a judgment dated 5th March, 1931, of the Circuit Court of the Sierra Leone Protectorate presided over by the learned Chief Justice of the Colony, ordering the appellant to 15ive up possession of certain lands in the Protectorate, possession of which was claimed by the respondent.

The appellant was and is still in po:"session of the lands in question situate at Bo--·of a total area of about 37 acres -under a grant made by the Paramount Chief of Kakua (or Big Bo) Chiefdom in 1892, presumably in the ordinary way provided by native custom prevailing in the country.

In or about the year 1904 the Government required some land in that neighbourhood and the Governor himself inspected these lands, together with the Chief and appellant. As a consequence the Governor wrote appellant under his own signature the letter dated llth January, 1905, (Exhibit" J "), upon which the appellant now entirely relies and which is accepted by the respondent who is a successor of the Chief of that time. The relevant part of that letter reads as follows :-

" I think it desirable toat a record should be made of the result of the recent interview between the Regent and representative men at :Bo and ourselves with reference to the land occupied by you at Bo, especially as a complete agreement on the subject was arrived at .

.• 2. The land in question was granted to you by the Chief and representative men for the purpose of cultivation. It follows that the land will remain your property so long as you cultivate it in accordance with the conditions as to cultivation subject to which the land was granted .

.• 3. At the time of the grant you contracted a marriage in accordance with native law with the daughter of the Chief, and as a result the Chiefs will on your death recognise the right of the children by this marriage to succeed to the land .

.• 4. The native custom does not permit of your sub-letting the land and consequently you have no right to do so. With respect to the six or seven building lots which you have sub-let, it was arranged with the Regent that he would order the natives who were in occupation of some of the lots to quit them unless they paid you the agreed rent. With regard to the lot occupied by Sierra Leoneans, the matter must remain in abeyance pending the coming into operation of a law which is about to be submitted to the Legislative Council."

In the year 1926 the pre~ent respondent assumed the office of Chief. In his evidence he s'tates-

.• When I became Paramount Chief I asked everybody for tribute. Defendant lid not pay, some other people did not pay they said that the land belonged to defendant."

"About 14 or 16 houses were built on defendant's land. I cannot remember now who refused to pay in 1906 (? 1(26). I spoke to defendant he said the land had been given him by Governor Probyn and that I should not ask him for anv

                                                                                                      tribute."     .

Again on page 29 he says as follows:~

" Defendant has sub-let house to people in Bo, to one Huggins, some time between 1926 and 1927, another Smith by the Tikonko road. Smith is a creole-living on land claimed by defendant. Another man called Armstrong, a creole, is also occupying another house on defendant's land.

" When I became Paramount Chief I asked defc;mdant about settlers' fees he told me that the land belonged'to him. When I asked him about the sub-letting of these houses he put me off and went to Freetown and rema iOf'<i a long time." .

 

 

231

Kamanda Bongay

v.

F. S. Macauley

Macquiarre Ag: C.}.

.il

 

 

232

Kalnanda Bongay

v.

F,S. Macauley

Macquarrie, Ag: C.].

 

 

Kamanda Eongay v. F. S. Macauley.

Later on in 1926 respondent wanted to widen a road which ran through land claimed by appellant. His evidence as to what happened, as accepted by the learned Judge, in 1926 is as follow~ :-_.

•• In 1926 I wanted to build a road from Hangha town to a stream where they wash clothes to a town called Kutubu-this was for the benefit of the public-the road was in existence-defendant claimed the land through which the road passed. I told the people that I wanted to widen the road to Kutubu. I did that at the beginning of August. I waited until the 18th before I started to make the road. Only bush was on either side of the road. I met defendant and told him I was improving the road-he said nothing-in the afternoon I went there again with some of the Bo School boys with poles. Defendant came and said nothing to me but asked one Karimoo whether he was sent there by the Principal of the Bo School. Karimoo said that it was the Chief who asked him to survey the road. Defendant said that if the Government sent him there he would have no objection, but if anybody in this Chiefdom they would get trouble as this land was his personal property. Defendant went home and brought some young trees and planted them across the roa.::l-I said nothing to him. I did not count the number of suckers he brought-I was vexed-I left defendant there and went back to my house-next morning defendant came to me, he called some other people I asked him what he wanted to see me for he told me he wanted to see me in my bedroom, as he was an old man. I agreed and we went in the bedroom. I told defendant I had brushed that road. Defendant said I had no authority to do so. I said the land belonged to the Tribal Authority. Defendant said the land belonged to him for a long time. I asked him to say who gave him the land-defendant said the Government had given him the land-he said that Governor Rowe gave him and that whoever interfered with it would get trouble. I consulted with my Tribal Authority and they said it was advantage .

•• I make a petition and I was advised to take action against him in the Circuit Court."

and in cross-examination :-

•• I wanted to widen the road. I wanted to make a road about 4 to 6 feet wide to protect people walking to the stream and to prevent snakes biting peOples' feet. If I had had no trouble with defendant for this road I would not have summoned him as he gave no trouble."

Respondent then took action against appellant in 1927. The Court gave judgment in his favour, but the West African Court of Appeal in March, 1930, r~ferred the case back for retrial and it is the judgment at that retrial which is the subject of this appeal.

In the summons respondent simply claims possession without stating any grounds, except that he is entitled to the lands as part of the Chiefdom. There are no pleading!?, the procedure of the Court being of a summary nature.

Counsel's opening, however, contains the following :-

•• Defendant continued occupying land and erected houses on land and sub-let to people. Newly elected Paramount Chief intended to build road on land occupied by defendant. Defendant denied right of plaintiff to cross his land and threatened to take action against him. This brought matters to a head."

Respondent alleges, and it is the main issue, that appellant, by conduct incon!'istent with the term of his occupancy, has forfeited his right to it.

First, as to the terms of appellant's occupancy. These are admittedly governed by native law and custom, and the letter of the Governor already referred to is relied upon by both parties. Appellant by his counsel argues, on the fin'! and fourth grounds of

232

Katnanda Bongay

v.

F. S. Macauley

Macquarrie, Ag: C.).

 

 

Kamanda Bongay v. F. S. Macauley.

Later on in 1926 respondent wanted to widen a road which ran through land claimed by appellant. His evidence as to what happened, as accepted by the learned Judge, in 1926 is as follow~ :-_.

•• In 1926 I wanted to build a road from Hangha town to a stream where they wash clothes to a town called Kutubu-this was for the benefit of the public-the road was in existence-defendant claimed the land through which the road passed. I told the people that I wanted to widen the road to Kutubu. I did that at the beginning of August. I waited until the 18th before I started to make the road. Only bush was on either side of the road. I met defendant and told him I was improving the road-he said nothing-in the afternoon I went there again with some of the Bo School boys with poles. Defendant came and said nothing to me but asked one Karimoo whether he was sent there by the Principal of the Bo School. Karimoo said that it was the Chief who asked him to survey the road. Defendant said that if the Government sent him there he would have no objection, but if anybody in this Chiefdom they would get trouble as this land was his personal property. Defendant went home and brought some young trees and planted them across the roa.:l-I said nothing to him. I did not count the number of suckers he brought-I was vexed-I left defendant there and went back to my house-next morning defendant came to me, he called seme other people I asked him what he wanted to see me for he told me he wanted to see me in my bedroom. as he was an old man. I agreed and we went in the bedroom. I told defendant I had brushed that road. Defendant said I had no authority to do so. I said the land belonged to the Tribal Authority. Defendant said the land belonged to him for a long time. I asked him to say who gave him the land-defendant said the Government had given him the land-he said that Governor Rowe gave him and that whoever interfered with it would get trouble. I consulted with my Tribal Authority and they said it was advantage.

" I make a petition and I was advised to take action against him in the Circuit Court."

and in cross-examination :-

" I wanted to widen the road. I wanted to make a road about 4 to 6 feet wide to protect people walking to the stream and to prevent snakes bitinR peOples' feet. If I had had no trouble with defendant for this road I would not have summoned him as he gave no trouble."

Respondent then took action against appellant in 1927. The Court gave judgment in his favour, but the West African Court of Appeal in March, 1930, r~feITed the case back for retrial and it is the judgment at that retrial which is the subject of this appeal.

In the summons respondent simply claims possession without stating any grounds, except that he is entitled to the lands as part of the Chiefdom. There are no pleading~, the procedure of the Court being of a summary nature.

Counsel's opening, however, contains the following :-

" Defendant continued occupying land and erected houses on land Ilnd sub-let to people. Newly elected Paramount Chief intended to build road on land occupied by defendant. Defendant denied right of plaintiff to cross his land and threatened to take action against him. This brought matters to a head."

Respondent alleges, and it is the main issue, that appellant, by conduct incon!'istent with the term of his occupancy, has forfeited his right to it.

First, as to the terms of appellant's occupancy. These are admittedly governed by native law and custom, and the letter of the Governor already referred to is relied upon by both parties. Appellant by his counsel argues, on the fir!'t and fourth grounds of

Kamanda Bonga,.y 'lJ. F. S. Macauley.

appeal, that that letter admits of sub-letting houses; and also that the use of the word" your property" and the promise that his children would succeed all show that ownership of the lal1d was intended to be granted.

I agree with the learned Judge's conclusions on this question.

The Governor's letter is not intended to be exhaustive; as it states it is a record of agreement arrived at, (evidently there had been some disagreement) and it regards native custom throughout. It clearly prohibits" sub-letting," whether for cultivation or for houses, and the appellant's claim that he can" !'ub-Iet " houses was properly rejected by the Court below.

The land was granted only for cultivation in accordance with conditions as to cultivation subject to which it was granted, i.e. according to native custom, which, among~t other things ordinarily requires the payment of annual tribute, and that permanent crops are not to be planted without the consent of the Paramount Chief (,See e.g. appellant's own statement" The Goverror ordered 300 gum copal trees to be supplied me at 3d. each. The Paramount Chief and Tribal Authority agreed that I should plant these trees on the land." )

There is no question that between 1905 and 1926 the appellant freely sub-let in spite of the agreement in the Governor's letter. No objectiol1 appears to have been taken by any of the respondent's predec~5sors, and in my opinion no complaint can properly be founded upon such conduct. The r~pondent, however, appar~ntly does not approve of their inaction and now objects to appellant's •• sub-letting" after his accec:sion and after being warned. It appears to me he has every right to do so. Appellant could not acquir~ a perp~tual right to sub-let, and sub-letting without consent of plaintiff is as much contrary to the terms of occupancy in 1926 as it was before that year. As shown by his evidence quoted above, respondent warned appellant about his then sub­letting, but appellant said the land had been given to him by Governor (Probyn)-thus ignoring the real grantor of the land. He did not claim merely the right to sub-let itself. Respondent, however, does not rest his claim on that alone. He claims in addition that appellant's conduct disclosed in his statement above quoted when he (respondent) attempted to work on the road is so contrary to the conditions of his occupancy as to cause its forfeiture. I agree with the learned trial Judge that it is.

The conduct amounts to a direct public denial of the Chief's undoubted right to go on to the land for the general good of the community as a proved native custom and part of the conditions of tenure; and in addition a claim to the land as his, in such terms as to convey a claim to absolute ownership, it being so regarded by both parties. Appellant said the Governor had given him the land and that whoever interfered with it would •• get trouble" ; i.e. if the Paramount Chief himself interfered he would meet with opposition, as he had already experienced.

 

 

233

Kamanda Bongay v.

F. S. Macauley

Macquarrie, Ag: C.J.

234

Kamanda Bongay

v.

F. S. Macauley

Macquarrie, Ag: C.].

 

 

Kamanda Bongay v. F. S. Macauley.

This view of appellant's attitude is confirmed by the evidence at the trial, when he said " I think I could sell it .... I could let the houses on the land and will it to my children."

The learned Judge in concluding says :-" To sum up, I find that the appelJant has, by flouting the authority of the Paramount Chief, both in the matter of his tenants and by his claim, expressed and implied, to the absolute ownership of the land, culminating with his interference with the road, been guilty of conduct which renders all his rights in the land liable to forfeiture." With this finding I agree. (The appellant who wa~ granted and holds no more than a usufructuary right for his lifetime but inalienable and defeasible upon conditions, is asserting and attempting to enjoy the incidents of absolute ownership which is a conception quite foreign to the respondent's ideas, particularly as against the community which he represents, and one which neither the grantors nor their successors ever for a moment contemplated.

This finding disposes of the first and fourth grounds of appeal in that it is clear that the obligations" for the continuance of his tenure" have not been " duly performed by him."

There remains to be considered the question of the enforcement of the forfeiture. Appellant argues that even if he has been guilty of such conduct, the Court below had no jurisdiction, firstly, to hear the case, and, secondly, to make the order for possession.

As to the first contention, Mr. Barlatt for the appellant argues that section 21 of Ordinance 19 of 1927 (p. 144 of Suppt. to the Laws) exclude suits as to land, because it repeals section 39 of Cap. 169 and particularly sub-section (1) (b) thereof. I cannot agree in view of the provisions of section 10 (2) (e) of the Inter­pretation Ordinance, which enacts in effect that a repeal shall not affect any legal proceeding (etc.) in respect of any right (etc.) under the repealed enactment; and that any such proceeding may be continued as if the repealing Ordinance had not been passed. The repealing Ordinance came into force on 1st October, 1927, after the right acquired by plaintiff and now being enforced had accrued, and clearly does not affect the jurisdiction in respect of any such proceeding.

As to the second contention, that the Court had not jurisdiction to make the order for possession, counsel argued in its favour that the Court has to administer native law and custom in this case; that the evidence shows' that by that law the remedy for such conduct is banishment from the Chiefdom in the case of a member of the Chiefdom; in the case of others Y'hich is the status of appellant, expulsion from the Chiefdom; and that that custom cannot be modified by the Court and some other substituted for it unless sanctioned by proved native custom, on the authority of the judgment of the Privy Council in the case of Eshugbayi Eleko v. Government of Nigeria (Officer Administering) (1931) A.C. at page 673.

Kamanda Bongay v. F. S. Macauley.

The argument then proceeds that the Court has no jurisdiction to make any order other than an expulsion order, and that therefore the order for possession is without ·authority. This would seem to epitomise the arguments on parts of grounds 2, 3 and 6 of the grounds of appeal. In reply Mr. Kempson for the respondent argued that the power of expulsion from the Chiefdom in the case of appellant includes the power to expel from the land itself only; that in any case the dictum of the Privy Council in the case quoted is confined to custom as regulating "the relations of a native community inter se," and is not to be applied without modification where the relations between a native community and a non-nati-le are in question: and finally (see Vol. 18, Halsbury, pp. 532 and 536 referred to by Mr. Kempson) on the anology of a landlord and his tenant, that the Court has jurisdiction tp make such an order under section 38 of Cap. 169 (which gives it " all the powers and authorities of the Supreme Court of the Colony" which, by section 3 of Cap. 205, include "the jurisdiction, powers and authorities which are vested in, or capable of being exercised by, His Majesty's High Court of Justice in England " etc.)

On this point, I agree with the view put forward by the respondent. I think that the main effect and object of the native custom is to deprive the offending tenant of any right to the use or occupation of land in the Chiefdom, that an order to give up possession as applied to a non-native is a proper application of that remedy; and that, in any case, the Court would have jurisdiction to order possession having found that appellant had forfeited aU his rights to occupy the land.

It may be noted here that there is no record of such a point being raised by the appellant in the Court below, but it was argued before us under grounds 2 and 3 of the grounds of appeal.

For these reasons, I am of opinion that the order for possession was one that could properly be made, respondent representing himself and the Tribal Authority as representative of the community, being entitled to possession for the purpose of apportionment under the power which it is proved they possess. So far as the evidence goes, the land becomes vacant if given up by appellant.

The fifth ground of appeal was abandoned.

The seventh was not pressed nor is it clear what bearing it has upon the judgment.

On the eighth and ninth grounds, it was argued that the statement in paragraph 3 of the Governor's letter (Ex. J) gave appellant's "posterity" a reversionary right in the land. This is, I think, sufficiently dealt with in the finding on the nature of appellant's rights in the land which cease at his death. Similarly as to the argument that, as the eighth ground expresses it, " the posterity of a stranger (husband) by his native wife can inherit lands granted to him." The finding of the Court below on thi&

 

 

235

Kamanda Bongay v.

Macauley

Macquarrie, Ag: C.].