Courban & Raffer v George Washington Turner [1924] SLCA 2 (1 December 1924)

147 COURB~\.N & RAFJ.t'ER- - Appellants. GEORGE 'Y.ASHINGTON TURNER - Respondent. Trcs;mss on lu/1(7-.lc-qui.~ition of rightful 7>o.~session of land after applicrtfion therefor .C)1'a111Nl, but befo1•e e.ucution of lease. CasC' sLated by Butler Lloyd, J., in the Circuit CourL o£ the Protectorate -o£ Sierra Leone. CARE STATED. This was a C'laim for damages for trespa~" to land situated betwt>en tl1e pt·emise::. formerly occupied by )Iessrs. }!ann & Cook, at Blama, and the Post Office, Blama, and for tbe delivery of rertain g-ood~ alleged to have been found by Defendants ou the land and 1h'tained b~· them. A further claim in respect of the demolition of eC'rtain building;; alleged to have been on the land at tl1e time oF the trc;;pass was dropped by Plaintiff's solicitor at the trial. It appearecl from the e\'idence that Mesc;rs. Mann & Cook, who ha"\"e now heen ~ucr·eeded by Defendants, l1eld a lease of the lan(l on whirh their prC'mises stood, but this lease was not pro­ dured in evidence. It waR proved that Plaintiff, who was at the time employed by ~fl':<srs. Mann & C-ook. obtained in 1921 a settlers' plot leac;e of the land in dispute, and he produced receipts relating- to that ;year and 1922. After taking over Messrs. Mann & Cook's business, the Defendants appear to have been anxious to get hold o£ tbis land. and some time towards the end of 1922, in the absence of Plaintiff. and without his knowledg-e, they had a measurement carried out by District Commissioner Shaw, which they alleged showed that the fence which Defendant had E-rected encroached to c;ome extent on the land held under Messrs. Mann & Cook's lease. It is clt•ar, however, from the E-vidence, that, on a subsequent measuren1C'nt being effected by District Com­ missioner Despicht, Disil'ict Commissioner Shaw's measurements were found to he inaccurate. Shortly after the measurement by; Mr. Shaw, portions o! Plaintiff's fence were pulled down by persons in Defen dants' employment, though it is possible I hat in doing so they acted l•t Decembu. 1021. ()c,u&BA)I & RAHER v. •1'ultNER . 14:> under the chief's order rather than Defendants', and cattle belonging to Defendants were subsequeully tied on the laud m dispute. On 11th December, 1922, the Defendant!', on pa~·ment of £10 to the chief, obtained a setiler's plot lease of the piece of land situated between their prelllisc:-. and the Pol't Office, and a receipt for this amount wn;; produced by them. It was not denied that this land was the ~ame, or suhstnntially the snme, as that in respect of which Plaintiff had paid the settler's fee for that year, and notice in writin~ was given to Plaintiff by the chief, at Defendants' reque::<l, on the 28th Dccel)lber, 1922, that the land now belonged to Defendants. No explanation was given for the Defendants paying £10 for a plot of lancl in respect of which only £1 had been paid previously, and the natural conclusion ·was that they were acting in collusion with the chief in order to oust the Plaintiff from it. An attempt was made h~· the Defence to show that at the time of the hespass }>laintiff had abandoned the land in dispute, but I was unable to find this contention pro•ed. The e•idence on the claim in detinue was not satisfactory, and I was not sati::<fied that the Plaintiff had made out this part of the case, but I considerPd the trespass, as constituted by pulling down portions of t]ll' fence and tethering cattle on the land, to have been full~, e"lablic;hed. As to the value of lhe land, or even its extent, then' was litllP 01· no evidenee, but from the fact that Defendants were "ill in~ to pa~· as much as £10 for it, it would appear that it had, in fact, some appreciable value, and I therefore ga•e judgment for Plaintiff on the claim of tJ:espass in the sum of £50 and co'lts. (Sgd.) W. B. LLOYD, Judge. T. A maclo Taylor for the Appellants. Ladepon Thomas for the Respondent. SA \VREY-COOKSON, J. This is an appeal by the Defendants {rom a judgment of the learned Circuit Judge awarding the sum of £50 as damages against them for trespass on tl1e Plaintiff's land . It is clear from the case, as stated by the Circuit Judge, that the alleged trespass was constituted by the wrongful pulling down by the Defendants o£ the Plaintiff's fence and by the tethering of Defendants' cattle on the Plaintiff's land enclosed by such fence. 149 But )fr. 'l'aylor, ff1r the D<•fetoclant>:, has argnl'd that this tn·~pass was no act of the Defcnu:mts for which the~· c·an he held responsible, for the rea..;on tl1at they did only what they were entitled to do, as from the molllent they applied for and ohtaine!l whnt may he known (for the purposes of this ease) ns a settler's plot lease of land, whieh, iu lh<' words of the learuc•tl J udgr, " was the same or subslanl ially the same as that in n~spect or which the Plaintiff had (also) paid the settler's fee" of £1. The Defendants, it ~hould be noted, paid .£10 as such settler's fee to the same chief. Accordingly, the position wl1ich :llr. Tayl01 maintnim•d (as I understand him) is thai unless it can be shown that any trespass occurred before such lease was obtained from the chief, the Defendants have been wrongly sued; in other words, any cause of action which the Plaintiff may have had wn;; against the chief who confened rightful possession of the laud 011 the Defendants. It is further maintained for Defendants that the pulling down of a portion of the Plaintiff's fence was done by ihe chief's orders, given to the Defendants' servants; and I may say at once that the weight of e·ddence on this point leaves no doubt in my mind that such was the case. A.nd if that be so, :llr. 'l'aylor contends that still less should the Defendants have been found liable in damages. It is of intere~t to obseHe how the learned Judge states his view on this point in the following 1ro1'ds :-" . . .. it is possible in doing so (i.e., in pulliug " down a portion of the Plaintiff's fence) they (the Defendants' " servants) acted under the <'hief's order rather thnn the " Defendants' "; and the learned Judge proceeds at once to add to those words " and cattle belonging to Defendants were '' .~ulMequently tied on the lmul in di,..pute." These words are important (more especially th<' word "subsequently," which I have underlined) as showin~ that in the learned Judge's view part of what constituted the trespass was not done until after the cl1ief had intenened. It i!l not perhaps as clearly brought out in the evidence as it might be as to when exactly the Defendants were justified in considering that they acquired rightful possession of the land in dispute from the Chief, but I ran find nothing in the evidence at all inconsistent with the view expressed by the Defendant Ra:ffer, on page 9, of the notes of evidence, as follow:>:-" I considered the land was mine after " the fence was pullerl down and used it as mine. as the chief " harl given it to me.'' On the rontrary, I find the following part of the e'\"ii!t>ncc of one of Plaintiff's own witnesses (Gannon), on pag~> 4 of t1w notes, viz., " ... I have seen cows on Plaintiff's ~..\WREY• l'OOKSO~, J. COURBAN & RAli'JI'ER t:. TUUNER. SAWR.:Y· <'<>ORSOX, J. 150 '< land after the chief handed over land and pulled down "Plaintiff's fence ... " in support o£ thai view. It is posRible lhai an agreement by and between the Defendants and the chief for th~ lease bad been made prior to lhe payment of the £10, but, however that may be, I think it highly probable that the chief had communicated to the Defendants tl1at tl1eir applieation for the lease had been approved by him before the actual payment was made. That being so, the Defendants were not precluded from entering upon rightful possession o£ the land until the actuaL completion of the lease, which would ordinarily come about upon the payment of the consideration pric-e of £10, on the authority of Glenwood Lumber Company v. Phillips (1904, A.C., P.O., per Lord Davey, at p. 411), where I find that "the communication " to the Respondent that his application for a licence had be<'n " granted would give him, as from that date, a good title .... "although the licence was not comp leted until a later date." )fr. Thomas, for the Plaintiff, referred to a passage in Ualsbury's Laws of England, volume 27, at p. 852, on the "nature of possession," when answering )fr. 'Taylor's argumt'ni that the Plaintiff was not in pos~ec;c;ion of i11e la1Hl at the time of tl1e trespass, but I do not find anything morE> there b~· way of authority than that it would only be in ihe ah;;etwe of an~· title in the Defendant that C'ei lain kind o£ evidence would ht• suffkit•nt for the Plaintiff to maintain an action for trespass. :Jir. Thomas, however, very properly agteed that the real point was whether or not the chief had ordered or authori ... ed the trespass. and he pointed to the chief's evidenee, a" heing again:;t thi::; view. lhe ,·alue of which evidence in my cl~nr view, has to be con-.i1lerably discounted when it is borne in mind that he must find it very difficult to explain gatisfactoril~· how he came to accept .£10 for a settler's lease of the ver~· land in respect oi which a similar lease had been granted by him and was still running, the usual consideration price for which was £1. I am of the opinion, therefore, that the Appellants tightly considered tl1ey had possession of the land in dispute from tl te only authorit~· able to confer that right upon them, and that in doing what tl1ey did as constituting the alleg<'d trespass, they did nothing for which an action could be maintained against them, and that this appeal must be allowed with costs. McD ONNELL, Acting C.J. I conc ur. BU'l'LER LLOYD, J. I ha>e haa the opportunity o! reaJ1ng the JUdgment which has just been read by my learned brother Sawrc~·-Cooksou, in which the learned President hac;; concurred, and I find myself unable to agree with the conclusion~ they have come to. In allowing the appeal, they rely on the pl'inciple, with which I agree, that the Defendant in the case could not be sueu for anything done by him in pursuance of authority given him by the owner of the land-the chief. It is in the application of this principle to the fads of thl• case that we difier. They hold that such an authority was given by the chief at the time when the fcnee hctween Mann and Cook's property. and the Plaintiff's land was broken down, after the former property had been mea:.urt-Jd by Di~trict Commissioner Shaw. I do not think the evidence bears out this view. In the first place, it is clear from the Defendant's o"·n evidence, on page 7 of the notes of e'idence, that Di,fritt Con •. missioner Shaw's measurement 'vas carried out at the insl:Httc of the Colonial Bank, and not of Defendant him,elf. 1'he measurement took place some time early in NoYemller, 19~~ (I he chief says one month after the lanrl was mea«ured Defendant paid £10), and we know that the ten pounds was paid on lllh December. The Defendants' own evidence, " i£ the date on the receipt is 11/12/22, it is correct, it was the date the C'hie£ gaYe me land," is very clear, and this is confirmert in a striking way by the chief's letter to Plaintiff exhibit " E " claiC'd 28th December, which informs the plaintift that " the balance of the land on which you are building is now belonging to )fr. Uaffer since on the 11th of this month." I think, therefore, there was an interval between the measuring of the land and the consequent pulling down of the fence, and the payment o£ £10 on the 11th December, when the Defendant had no authority from the chief or anyone else to do more than rectify the boundary between the land comprised in Mann and Cook's lease and the Plaintiff's land; and I think that trespass by the Defendant during that period by tying cows on the land, and by allowing Plaintiff's land to remain unfenced, whereby it became a thoroughfare, to use Plaintiff's expression, wa!'; sufficiently shown. CoURBAl{ & RuFER t•. TUR.'\&R . CnURBAN & RAFFER v. TuRNER. 11vTLF.R Lr,ovo, J. 152 For these rea~ons I think tl1c judgment should stand and the appeal be dismissed. I should like to add one thing, and that is, that having seen the land in question since the hearing of the case, I should ha\e been quite prepared to reduce the damages allowed to a much smaller sum. X o evidence as to its extent or value was given at the tria l, and in arri\ing at the damages I ga\e, I had only the Defendants' apparent eagerness to obtain the land to go on.