Chief T. S. M'briwa v Tuberville & Ors (CC 67 of 1961) [1961] SLSC 31 (9 October 1961)

s. c.

SAMUELS V. UNITED AFRICA COMPANY. Marke J. The plaintiff was never cross-examined as to the figures he gave, thereby leaving the court under the impression that the defence admitted them. He was never contradicted nor even challenged as to the figures he gave. It was only in counsel's final address that he suggested that the figure of £250 income a month should be viewed with great caution. I accept the plaintiff's evidence that while the cases were hanging over his head " his mind was not good to do any business." But the onus was on the plaintiff to adduce evidence and produced such books as might help the court arrive at a figure representing his loss of business for the period. But from the unchallenged evidence of the plaintiff on this point it is clear that he must have suffered some considerable loss. And upon a consideration of all the circumstances of the case, I award him £500 (Five hundred pounds) for loss of business from October 1956 to Apri11957. As regards general damages, the plaintiff was admittedly in a large way of business. He was a man of integrity and one of the defence witnesses averred that he would not doubt the plaintiff's integrity. It is clear that if Mr. Brown had used all the information available to him, the plaintiff would not have been arrested. What to my mind aggravates the position is the uncontradicted evidence by the plaintiff as to what Mr. Brown said when he saw him after his arrest. From this evidence it is difficult to come to the conclusion that the defendant company was actuated by honest motives when they instituted criminal pro ceedings against the plaintiff. Though it is true that the defendant company continued to employ the plaintiff after his acquittal that could hardly be taken as adequate compensation for the humiliation and loss of reputation the plaintiff must have suffered in having to defend the criminal proceedings. In view of all these considerations I award the plaintiff one thousand pounds (£1 ,000) general damages. The order of the court is :

(1) The plaintiff succeeds in his claim.

(2) The defendants to pay plaintiff £665 (six hundred and sixty-five pounds) by way of special damages.

(3) The defendants to pay plaintiff £1,000 by way of general damages.

(4) The several sums of £665 and £1,000, making in all £1,665 to be patd in court and to be paid out to the plaintiff against his receipt.

(5) The defendants to pay the costs of the action.

(6) Costs to be taxed. Freetown [SUPREME COURT] Oct. 9, 1961 HON. PARAMOUNT CHIEF T. S. M'BRIWA PlaintiD Bankole Jones v.

1. TUBER VILLE AND OTHERS . Defendants [C. C. 67/61] Tort-Action for assault, false imprisonment, malicious prosecution and conspiracy Action against members of Native Court-Whether defendants were persons "engaged in the public service "-Whether court exceeded jurisdiction in passing sentence-Whether court properly constituted-Whether criminal proceedings instituted by defendants-Protectorate Ordinance (Cap. 60, Laws of Sierra Leone, 1960), s. 38.

r The District Commissioner of Kono District instructed the President of the Gbense Native Court to issue a warrant for the arrest of the plaintiff, and he gave instructions that plaintiff should be prosecuted for an offence contrary to section 15 of the Tribal Authorities Ordinance. Plaintiff was arrested on Sep tember 16, 1960 and taken before the Native Court, where he was charged with four separate offences against section

15. At the direction of the District Commissioner, the case was tried the same day and resulted in plaintiff's con viction on three of the four counts. He was sentenced to six months' imprison ment on each count, the sentences to run consecutively. The case was reviewed by the Assistant Commissioner, who altered the sentence to one of six months' imprisonment with hard labour. After plaintiff's release from prison, the record of his conviction was reviewed in the Supreme Court by writ of certiorari, and the conviction was quashed. Plaintiff then brought an action in the Supreme Court against the President and other members of the Native Court for assault, false imprisonment, malicious prosecution and conspiracy. Held, for the defendants,

(1) The President of a Native Administration Court is a person " employed or engaged in the public service " within the meaning of the Protectorate Ordinance and, therefore, is a protected person against whom no action, suit or other proceedings can be brought in respect of any act bona fide performed by him in execution of any order given to him by a District Officer.

(2) The court did not exceed its jurisdiction in passing sentence on the plaintiff.

(3) The court which tried the plaintiff was properly constituted. ( 4) The criminal proceedings against plaintiff were not instituted by any of the defendants.

(5) The acts relied on as constituting a conspiracy on the part of the defendants were not unlawful in themselves, nor were they accomplished by the use of unlawful means. Macaulay & Co. for the plaintiff. Mrs. Ursula D. Khan for defendants. Note: This decision was affirmed by the Court of Appeal on November 7, 1961 (Civil Appeal 67/61). BANKOLE JoNEs J. The plaintiff claims the sum of £25,000 as damages for assault, false imprisonment, malicious prosecution and conspiracy. At the outset of the case counsel for the plaintiff informed the court that the writ of summons was not served on the 1st and 2nd defendants for good reasons. The proceedings therefore in this action are confined to the other defendants, namely, the 3rd, 4th, 5th and 6th defendants. The plaintiff's case is clearly set out in his statement of claim which reads as follows:

1. The plaintiff resides in Jagbwema in the Fiama Chiefdom in the Kono District and is the member in the Sierra Leone House of Representatives for Kono South ; the 3rd, 4th, 5th and 6th defendants are members of the Tribal Authority of the Gbense Chiefdom in the Kono District and the 3rd defendant is President of the Gbense Chiefdom Native Court and the 4th, 5th and 6th defendants are members of the said court.

2. On the 16th day of September, 1960, the 3rd defendant issued a warrant for the arrest of the plaintiff on a charge of attempting to undermine the lawful authority of Paramount Chief Kaimakainde contrary to section 15 of Cap. 245 of the Laws of Sierra Leone, which charge had been falsely preferred against the plaintiff by the Gbense N.A. Court in the Gbense Chiefdom Native Court itself.

s. c.

HoN. T. S. M'BRIWA V. TUBERVILLE. Bankole Jones

s. c.

HoN. T. S. M'BRIWA V. TUBERVILLE. Bankole Jones J.

3. On the 16th day of September, 1960, in consequence of the execution of the warrant mentioned in the foregoing paragraph, the plaintiff was arrested and taken to the Gbense Chiefdom Native Court on the same day, and the said court was presided over by the 3rd, 4th, 5th and 6th defendants who are members of the said court and also members of the Gbense Chiefdom Tribal Authority.

4. On the 16th day of September, 1960, the 3rd, 4th, 5th and 6th defendants detained the plaintiff in the said court for several hours, and purported to try him for the offence mentioned in the foregoing paragraph 2 ; purported to convict him to 18 months' imprisonment with hard labour and caused him to be imprisoned and conveyed him to the Assistant District Commissioner, Kono, who reduced the said term of imprisonment to six months' imprisonment and committed him to prison for the said term, which the plaintiff has since served.

5. On the 24th day of February, 1961, the aforementioned proceedings were brought before the Supreme Court on an application by the plaintiff for an order of certiorari and the said conviction was quashed with costs. During his cross-examination the plaintiff deposed as follows: " The prosecution was brought against me by the Gbense Administration Court." Counsel for the defence thereupon sought and was granted leave to amend his pleading by the addition of a sentence at the end of paragraph 2 of his defence. This paragraph now reads as follows with the amended portion in italics: " The 3rd defendant admits issuing a warrant for the plaintiff on the charge described in paragraph 2 of the statement of claim, but the defendants deny that the charge was falsely preferred against the plaintiff, and further deny that there was not reasonable and probable cause for preferring the said charge or, that anyone acted with malice in the preferr ing of the said charge. And the defendants further deny that the Gbense Native Administration Court preferred the said charge or any other charge against the plaintiff." The plaintiff in his evidence stated that he was arrested with a display of arms and driven under guard from his home to the Gbense Native Adminis tration Court where he was tried on charges of attempting to undermine the lawful authority of Paramount Chief Kaimakainde. He however admitted that in his opinion the display of arms was a precautionary measure to prevent any disturbances. The members of the court, he said, were the four defendants, one M'bayo Kawa and two others whose names he did not know. He sa1d that the 3rd defendant the President of the Court was the prosecutor who in the first instance asked him whether he was guilty or not without telling him what the charge or charges were. When he was asked if he had witnesses, he said he could not say as he did not know what he was charged with. There upon the 3rd defendant said " If you have no witnesses we have witnesses." After all this the court clerk read the charges to him and the plaintiff pleaded not guilty to them. What transpired is recorded in the Court Record-Exh. " B." The plaintiff however gave evidence enlarging on this record to show that the 3rd defendant took sole control of the proceedings by sending to call witnesses and by himself and another court member making improper remarks during the trial tending to show bias on their part. For example he said that at one stage the 1st defendant said "This is going to be the end" and thereupon the 5th defendant replied " Yes, as long as we have the police and the District Com missioner behind us." At another stage the 3rd defendant said "We are going

r

to break the pot this time." Now, the pot was and still is the symbol of the plaintiff's political party, and the plaintiff understood this remark to mean that the court was going to destroy the party of which he was the founder, President and leader by giving a " false judgment." At the close of the evidence in the case, 3rd defendant openly sought the views of members of the court regarding the sentence to be passed. Each expressed his view including M'bayo Kawa and the two other members of the court whose names he did not know. He was then sentenced to 18 months imprisonment-" six months for each meeting I held." After this he was driven in a police vehicle to the District Commis sioner's office at Sefadu a distance of a mile and a quarter where the District Commissioner, Tuberville, instructed that he be taken into the office of the Assistant District Commissioner, Hoare. In the presence of the 3rd defendant, the Native Court Record Book was produced and Hoare asked plaintiff if he would make a statement. He made one. Hoare then reviewed the decision. He confirmed the conviction but reduced the sentence to six months. The review of Hoare is to be found in Exh. " C." After this the plaintiff was subsequently taken to Freetown prison where he served his sentence obtaining his release on January 15, 1961. Nine days after arriving at Kono from prison the plaintiff was elected Paramount Chief and on February 24, 1961, his conviction was set aside by the Supreme Court on certiorari proceedings. The defence called three witnesses, namely: Dunstan Emanuel Modupeh Williams, Acting Senior Registrar of the Supreme Court, who produced the original Order of Court quashing the plaintiff's conviction (Exh. " E "), Hoare, the Assistant District Commissioner who reviewed the proceedings in the Gbense N.A. Court and who was originally the second defendant, and the 3rd defendant, the President of the Gbense N.A. Court. Hoare in his evidence said that the charges before the Native Administration Court appeared to be four in number and that the Native Court convicted on three of them but in his review (Exh. " C ") he considered that the Native Court was in error in taking various incidents as separate charges and he decided that there was only one charge. He said he reduced the sentence of 18 months (cumulative) to six months because he thought both that the sentence was severe and that the Native Court had exceeded their jurisdiction. He said that he did not know who drafted the charges before the N.A. Court. He said that when the case was brought before him for review, he headed his review "Gbense T.A.'s v. Hon. T. S. M'Briwa." His attention had not been drawn to the fact that the Native Court record was headed" Gbense N.A. Court v. Hon. T. S. M'Briwa." He said that this latter title was a mistake which in his experience was fre quently committed by N.A. clerks because normally it is the T.A. which brings cases against accused persons and not the N.A. Court. At the review he said that the plaintiff made no allegations against the 3rd defendant. If he had made any he would have investigated them. All the plaintiff said to him was " I have nothing to say " apart from making a statement. He said that on the day in question, what time he could not precisely say, the D.C., Tuberville, asked him to review the case against plaintiff before plaintiff was brought to him and he refuted the suggestion that before reviewing the case, he had con spired with anyone to convict the plaintiff. He made sure before reviewing the case that everything was regular and in order. The 3rd defendant, the President of the Court, stated that it was the D.C., Mr. Tuberville, who instructed him to issue the warrant for the arrest of the plaintiff. The D.C. told him that the Tribal Authority had been to see him

s. c.

HoN. T. S. M'BRIWA V. TUBERVILLE. Bankole 1ones

s. c.

HoN. T. S. M'BRIWA V. TuBERVILLE. Bankole Jones

and informed him that the plaintiff was the cause of all the trouble in Kono District. Tuberville took the warrant to him at the Court Barrie where there were present the 4th, 5th and 6th defendants. On his instructions, he signed the warrant on behalf of the Tribal Authority and not on behalf of the Native Administration Court. The 3rd defendant said that the members of the court which tried the case consisted of himself the 4th, 5th and 6th defendants. There were no other persons who sat with them as judges. M'bayo Kawa he said represented the T.A. and he conducted the case on their behalf. He denied that he was prosecutor and repudiated the remarks alleged by the plaintiff to have been made by him and the 5th defendant tending to show bias on their part. He said that the case was tried on the day the warrant was issued and executed. Before he signed the warrant the D.C. told him what the charges were and instructed him that after the trial he should take the plaintiff to him. All the members of the court were present when the D.C. spoke to him and agreed that they would try the plaintiff. He had never discussed the case with the D.C. before the date of trial. He confessed that although P.C. Kaimakainde and himself are brothers of the same father, nevertheless he was not biased throughout the trial. He said that before the court actually tried the case, he had no views on the allegation that plaintiff was spoiling the country. It was after evidence had been taken that he believed the allegation and that all of them then found the plaintiff guilty. As to the question of taking the plaintiff to the D.C. he said he would have taken him in any case even if the court had found him not guilty. Two questions to my mind ought at the very outset to be disposed of, before considering the merits of the plaintiff's claim. They are as follows:

(1) Who instituted the proceedings in the case against the plaintiff in the Gbense Native Administration Court, and

(2) Was the 3rd defendant, the President of the Court, the prosecutor? As to the first question Mr. Berthan Macaulay submitted that, as the title of the case is penned down in the Court Record Book (Exh. " B ") by the court clerk as "Gbense N.A. Court v. Hon. T. S. M'Briwa," the inference, therefore, is that it was the court itself which instituted proceedings against the plaintiff. As against this there is evidence that it was the Tribal Authority which made the complaint to the District Commissioner Tuberville, who then prepared a warrant of arrest on which the plaintiff was subsequently arrested and charged before the court in question. It was Hoare's opinion, it will be remembered, that the court clerk had made a mistake, one which he said was frequently made by court clerks. Even without calling the court clerk in question to depose whether or not he had made a mistake, there is ample evidence from which this court can find that the proceedings in the N.A. Court were instituted by the Gbense Tribal Authority and not by the Native Court itself and I so find. As to the second question, I do not believe the evidence of the plaintiff that it was 3rd defendant, the President of the Court who acted as his prosecutor. Although the Record (Exh. " B ") does not state who the prosecutor was, yet I accept the evidence of the President that it was one M'Bayo Kawa who appeared on behalf of the Tribal Authority. A glance at the Record will show that, after plea had been taken, there was immediately recorded in one column the names of the prosecution's witnesses and in another column, as against defence witnesses, the word "Nil." The inference is that each side was asked to name its witnesses before evidence was taken and recorded. This, therefore, explodes the story of the plaintiff as to how the witnesses came to give evidence.