Hannah Maxwel & Lucy Catherine Gibson & the Legal Adviser of the Colony of Gambia [1921] SLCA 3 (23 January 1921)

G 23rd Jamtnl'!t. ITANN.All :MAXWELIJ & LUCY CATHERINE 1920• GIBSON j ll .: ppe ants. v. 'l'ILE I,EG .\I, .\DY£SER OF 'l'JIB COLOXY OF THE G.UlB L\. N(.~pondenl. l'aJidity of C·rotrn Gmnt of 18G5-Power of Governo1· to grant Crown Lands, subject to zJrol'isions in Royal J nsf ructions­ Duty of Goremo1· under Royal Instructions to protect natwe inhabitants in the free enjoyment of their zJOssessions. A Crown Gran t of 117 acres near the town of "'a.:::loonga in Combo in the Gambia wal> executed in 1865 in fa,·our of the predecessors in title of the Appellants. There was no e,·iclence as to whether natives wero dispossessed of any of this land, formerly used by them for farming, or whether, if such were so dispossessed, that when they werP expropriated in favour of tho grantee, no adequate compensation wns paid to them. Held that in the ab~ence of such evidence the Crown Grant could not be ,.et aside and declared invalid on the ground that the grant was in conllict with thl' inshuctions to the Go,·ernor to protect the native inhabi­ tants in the free enjoyment of their pos~essions, and by all lawful means to prevent and restrain all dolence and injustice which might in any manner be practised or attempted against them. Declaration of the !:lupreme C'ourt of the Colony of the Gambia declaring the grant void, and vesting the land absolutely in His Majesty under the Vacant T,ancls (Ascer­ tainment of 'l'itle) Onlinauce, 1903, set aside and Crown Grant declared to be good and valid . ..ippeal from a juclgmeut of Yan der 1Ieulen, J .. in the Supreme Court of the Colony of the Gambia. Trright £or the .. ~ppell:mts cites:- Cooper t•. Stuart, hTI., 14 A.C., at p. 288. JlcDonncll, .\cting .\.0 .. for ihe Responllcnt <·itcs:- J enk-yns' British Rule anu J urisdictiou beyond the Sea:s. p. 104. Reg. v. Clark, 7 Moore, P.C.C., p. 77 . .Attorne~· General L'. Parmeter, 10 Prire, p. 078. Reg. 1'. llugbes and Stirling (186G), L.J., P.O., \~ol. 35, p. 23. PEXI~GTON, ,J. On the 1st ot April, 1919, j11dgment was given in the Court o£ the Gambia declaring that certain Crown Grants of land in that Colony -were >oid and vested absolute!) in ll1s ~Iajesty, as being lands unoccupied, or without any kno-wn or certain owner within the meaning of the YaC'ant Lands (Ascertainment of Title Ordinance, 1903). Against this decision the Defendants appealed. Before this appeal came on for heariug, llannah Maxwell, one of the Defendants, died, and so far no personal repl'esentative has been appointed. There were two pieces of lund in dispute, one called Brown's Farm, in respect of which Lucy Catherine Gibson was the Defendant, the other called Saint Joseph's Farm, in respect of which Hannah )f::txwell, deceased, bad been Defendant. As regards Saint Joseph's Farm, if there had been any defendant before the Court below, I would, in this Court, ha>e made a declaration in accordance -with that of the Court below, adding as an additional reason, that the grant had not been pro'\'ed to h;n e been executed at all. 'l'he unsigned copy, which was in evidence, is dated 1865, but was found inserted in the Crown Grunt Book of 1890. As regards Brown's l•'arm, the learned .hHlge based his llecision on the J"etters Patent and the Royal Instructions, which contain the following passages:- " And we do hereby gi>e, and grant, to the Go,ernor " of our said settlement ... and of their dt'pendt'nrie,, for the '' time being, full power and authority. in our name, and " on our behalf, but ~'ubjeet ne,ertheless, to ~neb pro­ '' ~isions, as be in that respect contained in any instruc­ " tions, which may, from time to time, be addressed to " him by us £or that purpose, to make and execute in our " name, and ou our uchal£, under the puulie ~cal o£ our said " settlements, grants of land to us belonging within the " same to priYate persons for their own use ::md benefit, or " to any persons, bodies politic or corpot·ate, in trust for " the public uses of our subjects there resident, OI' any of "them." Paragraph 41 of the Hopl Instructions referred to is as follows:- " And it is our further will and pleasure, that you do, " to the utmost of your power, promote religion and educa­ " tion among the natiYe inhabitants of our said settlements " and their dependencies, or of the lands and islands thereto " adjoining, and that ~·ou do especially take care to protect " them in their persons. and in the free enjoyment of their " possessions, and that you do, by all lawful means, pre>ent " and restrain all violence and injustice which may, in any ){.uwELL & Gmso:N v. Tru: LEGAL .ADVISF.R OFTRE CoLOl>'Y OF THE ,l}.uwu. I'ENINGTON, J. MAx wELL & GIBSON 1/. THE LEGAL ADVISER OFTRE COLONY OF THE GAMlliA. PENINGTON, J . 8 " mn.uner, Le practisetl or attempted against them, and that '' you take such measures as may appear to you to be neces­ " sary for their conversion to the Christian Faith, and for " their advancement and civilisation ." On the ground that these two passages should be read together, and that by the latter passage, a duty was laid upon the Go•ernor of " proteding the natives in the free enjoyment o£ their possession:; " the Court, at the suit o£ the Crown, declared that the land called Brown's Farm vested absolutely in the Crown. In other words, assuming that the Governor's action was against the R oyal Instructions, the Crown was allowed, at its own suit, to derogate from its own grant, and resume possession o£ this land. The learned Judge said :- " I am of opinion that the grant of this large area of " 117 acres of land in close prox imity to a native town, and which " the native inhabitants had been in the habit of cultivating, " without let or hindrance, presumably from time immemoria l , " a grant which was made without securing any corresponding " benefit of any kind, either to such natives or to the com· " munity as a whole, was contrary to the spirit and intent ion " of the Hoyal Instructions to which I have already referred, " and subject to w·hich I am clear it could only be made ." K ow let us examine this passage carefu lly : what evidence is there that the natives had occupied, or were in the habit of cultivating this land, from time immemorial at the elate of this grant tq)on ·which such a presumption could be founded? Surely the native system of cultivation w·ith long fallows is not suffi­ cient. 'rhere are many thousands of square miles o£ land in \Vest Africa which have never been cultivated at all, and many, many thousands of square miles which are covered with a secon­ dary forest growth. Every native has, no doubt, a right to land for cultivat ion for the support of himself and his family in the place which I may call his domicile, hut the "·hole o£ the land would only be c·ultivated when the population became big enough to demand it, and it is still a long, long way to that time . Again, what evidence is there that if natives were dis­ possessed they were not properly compensated for the loss of their right of cultivation? None at all. It is impossible to presume such a dreadfu l act of oppression against the Crown Officer without a s hadow o£ evidence on which to base it. If the Government has any reason to think that natives were dis­ possessed and not compensated, it is not too late for it t o - 9 search diligently out for tl1em, or their representatives, and, if found, compensate them adE>quately, nay, even generously for the wrong done in 1865. If the learned .Judge's contention is correct, every holder of a Crown Urant must be prepared to defend his grant at the suit of the C'ro"lm on the ground that the original grant, maybe 60 to 70 years old, was against, not any definite instruction io the Governor by the Crown, but against the spirit and intention of ttn instruc-tion. 'rruly a parlous position for the holders ot Crown Grants which, I think, have heretofore been considered as the very best possible root of a title-! do not think that such a position would be to the benefit of the community as a whole. . The claim that, hy common law, all grants of land must be made with t.he same intent and same spirit is, in my opin io11, equally bad. I thi11k that the judgment of the Court helow, as regards Brown's Farm, should be re>ersed, and the Crown Grnnt declared to be good and valid. As regards Saint .Jost>ph's Farm, in the circumstances, it is impossible to mak<> any declaration, and the Court below should not have made any cledaration at all, as thE>re was no Defendant to make it against, or in fn.vour of. Costs to follow the event in this Court and the Comt below. PARODI, J. I concur. PURCELL, C.J. I concur. MAxwELL& GTBSON v. THE LEOAL ADVISER OF THE CoLO!>'Y OFTDE GAMDIA . Pl:l1I!1GTON, 1.