Alfred James Shorunkeh-sawyerr & Anor & J. S. Bissett [1924] SLCA 1 (1 December 1924)

1st December, 1924. ALFRED JAMES SHORUNKEH-SAWYERR and Another - Appellants . "'· J. S. BISSETT - Respondent. t1ction for injunction and damages for t.respas.~-Production of plans fron~ proper cu.~tody-. l('rptisition of land by War fl epartment 1mrlrr Ordinancr Xo. 27 of190L 1 The claim in this action was for an injunction and for damages for tre.~pass against :\lajor Bissett commanding the Royal Engineers in the Colony, in re.-<pect of a portion of certain lands at Drookfields acquired by the War Department in 191•3, under the War Department's Lands Acquisition Ordinan ce, 1901. Held that if the land in dispute, as the Public Works Department Sunreyor depose·d, was not within tho land acquired by the War Depart. ment, the Appellants had no cau~o of action, and that if, on the other hand, as the Appellants alleged, the land was inch•ded in that com· pulsorily acquired by the "\'''ar Dt>partment in 1915, such acquisition was legally effected, and no trespass by the \Yar Department could now be alleged. Appeal dismissed with costs. Appeal from a judgment of Purcell, C.J., jn the Supreme Court o£ the Colony o£ Sierra Leone. A . J. Shorunkeh-Satcyerr and J. C. Sh orunkeh -Sawyerr, the Appellants in person. Kempson for the Respondent. A . .! . Sho1·unkeh-Sawyerr for the Appellants cites:­ Jacker v. International Cable Co., 5 T.L.R ., p . 13. Yol. lY, )fontagu's edition o£ Sierra I.eone Ordinances . Phipp s on EYidence, Gth Edition, p. 442. A~sheton Smith 1:. Owen, 75 L.J. Ch., p. 181. Mercer r. Denn e (1904), 2 Ch., pp. 544-546. Doed-Hughes v. Lakin (1836), 7 C.P., 481. Raleigh v. Goschen (1898), 1 Ch., p. 73. Shepherd v. :llayor of Norwich, 54 L.J. Ch., p. 1050. Sa.unby "'· Water Commissioners of Ontario (1906), A.C., p. 111. Ke1npson for the Respondent cites:- Sections 1-10 o£ Ordinanrr No. 27 of 1901, '\Yar Depart­ ments I1ands Acq11isition Ordinanre, 1901.1 ----- 1 Now Cap. 229, Vol. III, pp. 1544-15-16. 123 McDONNELL, Acting O.J. This is an appeal from the decision in an action for an injunction and damages against the Defendant (Respondent) to restrain him from trespass on four acres of land in what are known as the Second Maroon Allotments at Brookfields. The Appellants' title uates back to two deeds of COn\eyance from John Metzger to John Sawyerr, dated 1863 and 1866, each transferring two acres of lot K o. 65 of the Second Maroon Allot­ ments. A diagram of the Second Maroon Allotments is appended to Vol. IV. of :Mr. Algernon Montagu's Edition of the Ordinnnces dated 1870. This diagram bears the following at its foot : " F. Pyne, Sur,eyor of T.ands, Sierra Leone, Sept. " 22nd, 183 " The exact year in the third decade of 01e nineteenth century is not given. Below that comes the further inscription: - " Traced from the original plan depo8ited in the Land " Commissioner's Oflice, Sierra J,eone, hy A . E. Dixon ." In the course of the case there was produced by ~Ir. Temple, the Surveyor of the Public ". orks Department, a :hiS. plan (exhibit " V ") of the Second Maroon Allotments. The recep­ tion in evidence of this plan was stoutly combated by the Appellants on the ground that it "·as not produced from proper custody, hut allhough Mr. Sawyerr informed the Court orally what was the successor to the Lnnd Commissioner's Office, no evidence was called on this point, and I am satisfied in view of Mr. Temple's evidence: " T look after all plans, they are " in my charge," that exhibit " V " was properly received in evidence, as was also exhibit " \V " which was based upon certain data which are alone to be found in exhibit " V," and it should be observed that on page 33 of the evidence, Mr. Sawyerr expressly asked that exhibit " \Y " should be used for the survey made by ~fr. Temple at the learned Chief Justice's request during the hearing of the case. Now a considerable area of the Maroon Allotments was acquired in 1915 by the War Department. The Appellants argue that on the strength of Shepherd v. )fayor of Norwich, 54 L .. T. Ch., p. 1050, and Saunby v. Water Commissioners of Ontario (1906), A.C., p. 111, the land was not properly arquired by the War Department, inasmuch as the necessary notice to claimants was not given, SBOR'O'NXER· SAWYERR AND ANOTllllilt tl. BISSE'l'l' . SnonuNXEn­ SAwYEnn ANP ANOTHER v. BISSETT. MonoNNEtt, ACl'INO C •• J. The first of these cases hinges on section 18 o£ the Land s Clauses Consolidation Act, 1845 (8 and 9 Viet., c. 18), which provid es that a notice that the promoters are willing to treat for the purehase of the land must lJc posted or sel'ved. 'fh e seconll case depends upon the construction of an Ontario Act, section f) of 3G Viet., c. 102, which empowers the Water Commissiou~rs of t he City o£ JJondon, Ontario, to survey, set out and ascertain what land they require, and to contract with the owner or occupier for the purchase thereof . In other words, as was said by IJord Da>y in this case too, " they must give " the landowner notice to treat for some definite subject " matter." I n each case, both under the English a11d t.he Canadian Act, the parties must go to arbitration if they cannot agree as to the purrktse money a1Hl, on failure to give the proper notice , the promoters were held not to lun·e put themselves in a position to compel the .Appellant to !rO to arbitration. The proceedings in this case were taken under Ordinanc e No. 27 of 1901, the War Department Lands Acquisition Ordi­ nance, 1!)01, b~- ,;ec·tion 101 of '' hich, when within a stat utory time after notic·e tl1ere has been registerPd in the Registrar­ Geneml 's Office a plan cert ified by the Hegistrar-General, such registration is conchtsi>e eYidence thai the land has been taken for military purposes. If the compensation eannot he agreed to between the War Department nnd the owner the disputPcl rompensation has to be settled hy tlw ('h ief .T u·h,.e und er -.ed ion 11, but by section 18: a locus po·nitcntiff' of onP year after the Cl1ief Justice's decision is gi; en to persons who ha~e pre·dott~ly made no claim. I am l'a{isflrd ihat a noiicc was put ttpon the land in 1915 in compliance with section 6 of the Ordinance, that Mr. Wilhelm saw it, and that one at least of the Appellants saw it. P roper notice ha>ing been posted, the land was legally acquired b~· the> W .tr Department in 1 !ll:) under c:;ection 10. 1 In my opinion, therefore, the> Appellants are on the horns of a dilemma. If, as the Public Works n~partment's Surveyor alleg es, plot 65 is quite oub;ide the War Drpartment's boundary, they have no cause of action, and, on ihe other hand, if, as 1 Now Cap. 22!1, sec. 10, Vol. III, p. 1546. sNow Cap. 220, sec!!. 17 & 18, Vol. III, pp. 1548.1550. 125 the Appellants allege, the 1915 \Yar Department acquisition encroached on their part of lot 65, it has been legally acquired by the War Department, and no trespass by the Military can now be proved . For these reasons I am o£ opinion that judgment must be for the Respondent with costs. SAWREY-COOKSON, J. I agree. BUTLER LI"OYD, J. I agree. !/ 8HORUNKIIII · SAWYERR Ali'O A!!(QTHEII. II. BISSETT. .\[CDoN!I' IItL, ACTING C.1.