Macauley v P. C. Bongay (For Himself and Tribal Authority) (No.3) (2 of 1932) [1932] SLCA 2 (10 October 1932)

MACAULEY v. P.C. BONGAY (NO. 3), 1920-36 ALR S.L. 319 W.A.C.A. MACAULEY v. P.C. BONGAY (FOR HIMSELF AND TRIBAL AUTHORITY) (No. 3) West African Court of Appeal (Kingdon, C.J. (Nig.), Macquarrie, Ag. C.J. (Sierra Leone) and Berkeley, J. (Nig.)): October lOth, 1932 [ 1] Constitutional Law - chiefs - paramount chief - rights and duties - right of entry to customary land - Paramount Chief of Big Bo Chiefdom may enter non-native settler's land for good of community - public denial of right amounts to flouting Chief's authority: It is a settled rule of the customary law in force in the Big Bo Chiefdom that the Para mount Chief has a right, in the interests of the community, to enter land granted to a non-native settler, and conduct constituting a public denial of the Chief's right to do so amounts to the flouting of the Chief's authority (page 330, line 41-page 331, line 4).

[2] Constitutional Law - chiefs - paramount chief - rights and duties- 15 right to expel from land in Big Bo Chiefdom -where Paramount Chief's authority flouted offending party may be expelled from land and chiefdom - physical expulsion possible, legal proceedings preferable: Under the customary law in force in the Big Bo Chiefdom the Paramount Chief has the right to expel from the land he occupies and from the Chiefdom a non-native settler who has flouted his authority and has thus 20 forfeited his title to the land he occupies, but such expulsion need not be physically carried out and the court will look with favour upon a party who seeks to avoid a breach of the peace by coming to"the court for an order to enforce his claim (page 326, line 37-page 327, line 8; page 332, line 39-page 333, line 5). [ 3] Evidence - customary law - proved by evidence until notorious by frequent proof, then judicial notice: When particular rules of customary law have become notorious by frequent proof in the courts, a court may fake judicial notice of them (page 327, lines 18-22). [ 4] Jurisprudence - customary law - proof of customary law - by evidence until notorious by frequent proof, then judicial notice: See [3] above~ [ 5] Land Law - right of entry - Paramount Chief of Big Bo Chiefdom may enter non-native settler's land for good of community -public denial of right amounts to flouting Chief's authority: See [1] above. [ 6] Land Law - title - forfeiture - flouting authority of Paramount Chief

of Big Bo Chiefdom - offending party forfeits title and may be expelled 35 from land and chiefdom - physical expulsion possible, legal proceedings preferable; See [21 above.

[7] Land Law - title - forfeiture - title of forfeited land in Big Bo Chiefdom reverts to community and Paramount Chief as representative of community - may re-allot: When land in the Big Bo Chiefdom is forfeited, under customary law it automatically reverts to the corn- 40 munity and the Paramount Chief, as its representative, is entitled to resume possession and to re-allot it if desired (page 327, lines 13-25).

[8] Succession -family provision- non-native settler's widow and children can only remain on land in Big Bo Chiefdom with Paramount Chief's consent: Under the customary law in force in the Big Bo Chiefdom the widow and children of a non-native settler may only, after his death, remain on land granted to him with the Paramount Chief's consent (page 333, lines 28-32). The respondent brought an action against the appellant in the Circuit Court for recovery of possession of land. The respondent, suing on behalf of himself as Paramount Chief of the Big Bo Chiefdom and of the Tribal Authority of the Chiefdom, sought to recover possession of two areas of land from the appellant, a non-native settler to whom the land had been granted more than 30 years previously by the then Paramount Chief. There were two further plaintiffs described as "land owners," one of whom later died, whose names were struck out in subsequent proceedings in this case. The appellant had married the daughter of the Paramount Chief and had been granted some land by him in 1892. Some of this land the appellant sub-let contrary to the terms of his grant and disputes arose between him and the Paramount Chief. In 1905 the then Governor wrote a letter to the appellant which contained terms agreed upon by both parties to settle their disputes, the relevant points of which were that (a) the land would remain the appellant's property so long as he observed the con ditions as to its cultivation; (b) the appellant had no right to sub-let the land; and (c) as a result of the appellant's marriage with the daughter of the Paramount Chief, the Chiefs would recognise the right of any children of this marriage to succeed to the land. There were no further significant disputes until, in 1926, the respondent became Paramount Chief. He wished to clear and widen a road running through the appellant's land for the con venience of the community. The appellant objected, declaring that the land was his personal property, and proceeded to plant young trees on the road in support of his claim and in defiance of the respondent. The respondent and two further plaintiffs thereupon brought a successful action in the Circuit Court (Butler-Lloyd, J.). The appellant's subsequent appeal to the West African Court of Appeal (reported at 1920-36 ALR S.L. 181) succeeded and the court ordered the case to be reheard in the Circuit Court. The Circuit Court (Tew, C.J.), on the rehearing, again gave judgment in favour of the respondent on the ground that the

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In I Prd I caJ1 I I MACAULEY v. P.C. BONGA Y (NO. 3), 1920-36 ALR S.L.319 W.A.C.A. appellant had, by flouting the authority of the Chief, been guilty of conduct which under customary law rendered all his rights in the land liable to forfeiture. The judgment of the Circuit Court is reported at 1920-36 ALR S.L.

212. On appeal, the appellant contended that, under customary law, the forfeiture of rights over land was only consequent upon expulsion from it by the proper native authority; that unless and until this had been done, the question of forfeiture did not arise; that the court below had by statutory amendment had its juris diction over land matters removed; and that under customary law the court only had power to make an order expelling the appellant from the Chiefdom and not an order for the possession of land. He also contended, inter alia, that the terms of his original grant gave his children the right to succeed to the land, thereby giving him an "estate of inheritances" which could not be forfeited; and he sought compensation from the respondent. The respondent contended that the claim for possession was valid under the customary law then in force; that the customary law power to expel from the Chiefdom included the power to expel from the land within the Chiefdom; and that the Circuit Court had, by virtue of its enjoying the powers of the English High Court, power to make an order for possession. The appeal was dismissed. Cases referred to:

(1) Angu v. Attah (1916), P.C. '74-'28 43, applied.

(2) Eleko v. Officer Administering Government of Nigeria, [1931] A.C. 662; (1931), 145 L.T. 297, considered. Legislation construed: Interpretation Ordinance (Laws of Sierra Leone, 1925, cap. 103), s. 10(2): "Where an Ordinance repeals an Ordinance, the repeal shall not:- (e) Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceed ing or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Ordinance had not been passed." Protectorate Courts Jurisdiction Ordinance (Laws of Sierra Leone, 1925, cap. 169), s. 38: " ... the Circuit Court shall possess all the powers and authorities of

the Supreme Court of the Colony, and shall follow, as far as possible, the practice and procedure of the said Supreme Court .... " Supreme Court Ordinance (Laws of Sierra Leone, 1925, cap. 205), s. 3: The relevant terms of this section are set out at page 332, lines 36--,.--38. Barlatt for the appellant; Kempson for the respondent. KINGDON, C.J. (Nig.): This is an appeal from a judgment of the Circuit Court of the Sierra Leone Protectorate dated March 5th, 1931, making an order in the respondent's favour for possession of two areas of land situate near Bo in the Big Bo Chiefdom in the Central Province of the Protectorate. The writ of summons is dated February 9th, 1927, and at that time the plaintiffs were "Kamanda Bongay, Paramount Chief of the Big Bo Chiefdom, for himself and on behalf of the Tribal Authority and Gbogba and Lassana, land owners." At the trial which ensued judgment was given in the plaintiffs' favour, but the Court of Appeal ordered a retrial which began on January 22nd, 1931. It is from the judgment in that re-trial that the appellant now appeals. At the outset of the re-trial the plaintiffs' (now the respondent's) counsel informed the court that the plaintiff Lassana was de~ad and asked that both second and third plaintiffs be struck out. There was no objection from the appellant's counsel and the court ordered accordingly. In the present action, therefore, Kamanda Bongay sues alone as "Paramount Chief of the Big Bo Chiefdom, for himself and on behalf of the Tribal Authority." It is to be noted that the trial was a summary one and con sequently there were no pleadings, but it is to be regretted that the points in issue between the parties were not more clearly ascertained, defined and recorded at the outset of the trial, for it seems that the points upon which the learned Chief Justice based his decision in the court below only emerged as the real points in issue at a fairly advanced stage of the hearing. The basis of the decision is that - "the defendant has, by flouting the authority of the Para mount Chief, both in the matter of his tenants and by his claim, expressed and implied, to the absolute ownership of the land, culminating with his interference with the road, been guilty of conduct which renders all his rights in the land liable to forfeiture."

r MACAULEY v. P.C. BONGAY (NO. 3), 1920-36 ALR S.L.319 W.A.C.A. But in the particulars of claim there is not a word to suggest that the claim to recover possession was founded upon allegations of misconduct by the appellant involving forfeiture of his rights. They read as follows: "The plaintiff demands of you possession of two areas of 5 land situate near Bo in the Big Bo Chiefdom, Central Province, Sierra Leone Protectorate, descriptions of which are hereunto annexed. The plaintiffs are entitled to the said lands as forming part of the Big Bo Chiefdoms aforesaid. 10 The said lands are in the possession of the defendant." Further, when the respondent's counsel opened his case, he failed to make it clear that the question of the propriety or otherwise of the appellant's conduct was a straight issue in the case. However, this emerged clearly as the case proceeded, and I 15 do not think there has been any substantial miscarriage of justice as a result of the issues not being earlier defined. It is admitted in the writ of summons that the appellant was in possession of the lands claimed. The history of the appellant's occupation of the lands is a long one and is fully set out in the 20 judgment of the court below, so that it need not be recapitulated here. But the salient facts are that the appellant's occupation was in accordance generally with native law and custom, and at the same time was subject to some special and unusual features. The terms of the occupation are set out in a letter Exhibit J 25 dated January 11th, 1905 addressed to the appellant and signed by the Governor himself, which records "complete agreement" on the subject. It may be noted in passing that the letter speaks in para. 2 of "your property" and in para. 6 of "your land," and in para. 3 recognises the right of the appellant's children by his wife, 30 the daughter of the Chief, to succeed to the land. The appellant's interest in the land was therefore something more than a mere life interest. We have, then, the position that the appellant is in lawful possession of the land and is entitled to quiet enjoyment; the 35 respondent, to succeed in his claim, must show that the appellant's right to possession has been lost. What are the findings of the court below upon which it bases its decision that the appellant has forfeited his rights? The basis of the decision is twofold, viz.: (a) The finding of fact that the appellant has flouted 40 the authority of the Paramount Chief, and (b) the holding that by

native law and custom the appellant has by mere flouting forfeited his rights in the land. As to the first, I think that some of the matters relied upon by the respondent should be given little or no importance. The first 5 of these matters are the occurrences prior to the "complete agreement" arrived at in 1905 and evidenced by Exhibit J. I do not think it was proved that those occurrences included any misconduct on the part of the appellant. It is difficult now to ascertain what actually occurred, but whatever it was, any trouble 10 was completely and finally settled at the interview from which Exhibit J resulted, and these long past events should not now be raked up against the appellant. The second is the matter of the sub-letting by the appellant of part of the lands subsequent to the date of Exhibit J and before 15 the succession to the chieftaincy of the respondent. In Exhibit J the appellant was expressly informed: "The native custom does not permit of your sub-letting the land and consequently you have no right to do so"; and he admits that he has sub-let in spite of this warning. At first sight this appears to tell against him -but, 20 when the circumstances of the sub-letting are examined, not at all heavily. There can be no doubt that whatever the appellant did in the way of sub-letting was done with not only the knowledge and consent but also the active co-operation of the respondent's predecessor. The appellant's evidence showing this is: 25 "I built more houses and let them, as the plantation was extending. I continued building houses. No Paramount Chief has ever questioned my right to build houses - they assisted me to build them - Bojamu, Bamba son of Otoguah, Pessima, Regent Lemor, Boima, assisted me by supplying 30 labour. The Chiefs assisted me to build these six or seven houses - I did not pay the labourers - they cost me something -the labourers were supplied by the Chief. I gave the Chief friendly presents." 35 There is no evidence to contradict this and it must be accepted. I cannot subscribe to the proposition that the Chief's authority is flouted by an act in which he is a cordial co-operator, and I cannot agree that the appellant's act of sub-letting amounted to misconduct. 40 But when we come to the occurrences subsequent to the respondent's succession to the chieftaincy, it is a different story.

r MACAULEYu. P.C. BONGAY (NO. 3), 1920-36 ALR S.L. 319 W.A.C.A. It is evident that on his succession he set about seeing after the affairs of his chieftaincy with energy. He inquired into the matter of the land in the occupation of the appellant. He wanted to know about the settler's fee and the sub-letting of the houses. But he could get no satisfaction from the appellant and was merely met 5 by the assertion that the land belonged to the appellant. I think it is clear that during this period the appellant failed to pay proper respect to the Paramount Chief and set up a claim in defiance of customary law. It may have been natural and almost excusable that the appellant should do so, for his long and unquestioned 10 quiet enjoyment may well have led him to regard the land as his. But then came a more serious matter: the Chief started to widen a so-called road, which can really have been little more than a bush track, which passed through the land occupied by the appellant. In doing this the Chief was clearly within his rights by 15 native custom. But he was met by active interference and defiance by the appellant who repeated with emphasis his claim to the land as his own, definitely disputed the Chief's right to work on the road, and publicly advertised his defiance of the Chief by planting young trees across the road that all might see and know that he 20 meant to contest his claim. This brought matters to a head: the customary law of the land was definitely challenged. The chief must either take action to uphold his own rights and those of the community, or he must suffer humiliation and betray his trust. He very properly chose the 25 former course and brought this suit. The claims put forward by the appellant subsequently to the commencement of this action and at the trial itself cannot, of course, be used to found the present cause of action, but they may be legitimately used to show the significance of the claim he made previously. 30 I am of opinion that the attitude and actions of the appellant towards the respondent since the respondent's succession to the chieftaincy, culminating in the "road" incident, are such as to justify the appellant being held guilty of misconduct and so liable to be dealt with under native law and custom. 35 And this brings me to the second point forming the basis of the decision of the court below: How was the appellant liable to be dealt with under native law and custom, and is the decision that by native law and custom the appellant has forfeited his rights in the land correct? 40 This point presents some difficulty because all the evidence