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Appeal Court. 19 October 1937. Appeal from Judgment of High Court exercising Appellate Jurisdiction.

Claim for assault and false imprisonment-Land in dispute sub judice a Native Court-Section 32 of Ordinance 45 of 1933Question of ouster of magistrate's jurisdiction raised.

Held: The question of title to the land not being in issue and this being a serious assault and battery followed by illegal detention and not a mere ejection of alleged trespassers the plaintiffs were entitled to damages. Appeal dismissed.

There is no need to set out the facts.

E. J. Alex Taylor (Hon. S. B. Rhodes with him) for Appellants.

A. Kayode for Respondents.

The following joint judgment was delivered:-

KINGDON, c.]., NIGERIA, PETRIDES, C.]., GOLD COAST, AND BUTLER LLOYD,].

The facts proved and not now disputed in this case are that the defendants seriously assaulted the plaintiffs and falsely imprisoned them. The plaintiffs sued for damages for these wrongs in the Court of the Magistrate of the Protectorate Court. He awarded both plaintiffs damages for both wrongs.

The defendants contend that he had no jurisdiction to do so because the assault took place on land which was in dispute between the parties and the subject of pending litigation in a Native Court, relying for this contention upon the wording of the proviso to section 32 of the Protectorate Courts Ordinance, 1933.

" Provided that a Magistrate's Court shall not exercise original

jurisdiction in suits which raise any issue as to title to land or any interest therein in cases in which the suit is subject to the jurisdiction of a Native Court."

But in this case it makes no difference where the assault took place, whether on land in dispute or not; it was not a mere ejection of alleged trespassers, but a serious assault and battery and was followed by illegal detention; nor does it make any difference whether the plaintiffs were invitees or trespassers. The defendants

committed two torts against them, and the sole issues in the case Maxwell Ono before the magistrate was .. were these torts committed and if so & ~~o.

The question of the title to the land was not in any way in issue, & ~ and the pending proceedings before the Native Court were not in any Kingdon, way affected by the decision in this case. 2~.n?,::'

The appellants' Counsel quoted to this Court the case of Reg v. ButlerLloyd, Pearson, 22 L.T.R. 126, in which it was held that the jurisdiction of J. magistrates was ousted by the wording of section 46 of the Statute

•• Nothing therein contained shall authorise any justices to hear and determine any case of assault or battery in which any question shall arise as to the title to any lands, etc."

as soon as any such question is shown to arise, and suggested that this decision governed the present case. But we think that it does not for two reasons, first the wording of the English Act, "any question shall arise," is very much wider than that of the Nigerian Ordinance, " suits which raise any issue," and secondly in the present case no question really arose as to title, the defendants only sought to drag it into the case, but in their pleadings the plaintiffs did not put any such question in issue.

It is clear therefore that the magistrate's jurisdiction was not ousted by the proviso in question.