P.C. Bongay v Macauley, 1920-36 ALR S.L. 212

P.C. BONGAYv. MACAULEY Circuit Court (Tew, C.J.): March 5th, 1931

[1] Constitutional Law - chiefs - paramount chief - rights and duties right of entry to communal land to work on it for good of community - interference and denial of right amounts to flouting chief's authority: Under the customary law prevailing in the Big Bo Chiefdom, the Paramount Chief has the right to enter communal land, whether occupied by a settler or a native of the community, to do whatever he thinks necessary for the good of the community; and a settler's inter ference with this right, by physical obstruction and claims to absolute ownership of the land, amounts to the flouting of the chief's authority (page 226, lines 25-39). [ 2] Equity - acquiescence - undisturbed possession of communal land - conditions for application of doctrine under customary law of Big Bo Chiefdom: The doctrine of acquiescence in equity as applied to a case of long possession of land means, in the case of communal land in the Big Bo Chiefdom, that the person in whom the control and disposition of the land is vested has allowed the occupier to remain in possession under the mistaken belief that the land is his own absolutely, or at least that he has a better title than that which he actually has, and has allowed him to spend money or do some other act on the faith of that mistaken belief (page 227, lines 15-22). [ 3] Land Law - occupational rights - allotment of tribal land - under Mende customary law non-native settler must pay "shake hand," annual tribute and loyal respect to Paramount Chief - may be exempted from payment of tribute: Under the Mende customary law prevailing in the Big Bo Chiefdom a non-native would-be settler is required to give the Paramount Chief a "shake hand" or present before he is allotted a piece of land, for which he will then pay the Paramount Chief an annual tribute (from which the Chief may exempt him in his discretion) and so long as he behaves loyally and respectfully to the Paramount Chief he can continue to occupy the land (page 222, lines 21-33; page 226, lines 16-21). [ 4] Land Law - occupational rights - under Mende customary law right ceases at settler's death and land reverts to community - no succession for settler's children though Chief may re-grant land to them: Under Mende customary law, when a settler dies the land granted to him reverts to the family or community so that his children cannot succeed to it as of right; but it could be re-granted to them by the Paramount Chief just as if they were newcomers applying for a fresh grant (page 223, lines 9-40). [ 5] Land Law - right of entry - Paramount Chief of Big Bo Chiefdom may enter communal land and work on it for good of community - inter ference and denial of right amounts to flouting Chief's authority: See [1] above.

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P.C. BONGA Y v. MACAULEY, 1920-36 ALR S.L. 212 c.c. Land Law - title ···· communal title - whole community in Big Bo Chiefdom has equal right to land controlled by Paramount Chief and Tribal Authority - land allotted to individuals remains property of community: Under the customary law in force in the Big Bo Chiefdom all the members of the community have an equal right to the land in the chiefdom, but general control over it is vested in the Paramount Chief and the Chiefs constituting the Tribal Authority who can allot a piece of land to an individual for cultivation or building purposes; but the land so given still remains the property of the community (page 221, line 5-page 222, line 18). [ 7] Land Law - title - forfeiture - flouting authority of Paramount Chief of Big Bo Chiefdom - offending party forfeits title and may be expelled: Under the Mende customary law prevailing in the Big Bo Chiefdom, loyalty to the Paramount Chief is the basic principle of land tenure and disloyalty, such as continued flouting of the Chief's authority, entails forfeiture of rights over land and ejectment from it (page 222, line 34- page 223, line 8; page 227, lines 6-11). [ 8] Succession - family provision -- no succession to land as of right for settler's children under Mende customary law though Chief may re-grant land to them: See [ 4] above. The plaintiff brought an action against the defendant in the

Circuit Court for recovery of possession of land. 20 The plaintiff, 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 defendant, a non-native settler to whom the land had been granted more than 30 years previously by the then Paramount 25 Chief. There were originally two further plaintiffs described as "land owners," one of whom later died and both of whose names were later struck out. The defendant, a carpenter by trade, had married the daughter of the Paramount Chief and been granted some land by him in 30 1892 for the purposes of cultivation. Some of this land the defendant sub-let for building purposes contrary to the terms of his grant and disputes arose between him and the Paramount Chief which were eventually settled in 1905 by the then Governor. The terms of the agreement reached were contained 35 in a letter from the Governor to the defendant, the relevant parts of which stated that (a) the land would remain the defendant's property so long as he cultivated it in accordance with the con ditions as to cultivation; (b) the defendant had no right to sub-let the land; and (c) as a result of the defendant's marriage with the 40 daughter of the Paramount Chief, the Chiefs would recognise the

right of any children of this marriage to succeed to the land. From the date of this letter the defendant remained in possession of the land even though he continued to sub-let parts of it. In 1926 the plaintiff became Paramount Chief. He wisl1ed to clear and widen a road running through the defendant's land for the convenience of people going to and from a washing place. The defendant 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 plaintiff. The plaintiff, together with the other plaintiffs, thereupon brought a successful action in the Circuit Court (Butler-Lloyd, J.). The defendant'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. At the rehearing, the defendant contended that he was the absolute owner of the land, that he could sell it and keep the proceeds, and that he could will it to whomever he liked; and that in any case his daughter by his lawful wife could succeed to it in accordance with the agreement recorded in the Governor's letter of 1905. The plaintiff contended that the defendant had by his conduct, or by failure to observe the conditions of his tenure, forfeited his rights to the land in spite of his long possession. He further contended that a settler's children did not succeed to his land as of right and that the defendant must have been promised his children's rights of succession by the Governor in 1905 through a misunderstanding due to poor interpretation. The Circuit Court also considered whether the plaintiff or his predecessors had encouraged the defendant to spend money or to do other acts which he would not have done if the Paramount Chiefs had asserted their legal rights -whether, in fact, there had been acquiescence by the plaintiff and his predecessors in the defendant's claims thus making it inequitable that he should forfeit all his rights in the land. The court gave judgment for the plaintiff. Cases referred to:

(1) Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 A.G. 399; (1921), 3 Nig. L.R. 50, followed.

(2) Lala Beni Ram v. Kundan Lal (1899), 15 T.L.R. 258. 40

(3) Ramsden v. Dyson (1866), L.R. 1 H.L. 129; 14 W.R. 926.

P.C. BONGA Y v. MACAULEY, 1920-36 ALR S.L. 212 c.c.

(4) Rennie v. Young (1858), 2 De G. & J. 136; 44 E.R. 939.

(5) Willmott v. Barber (1880), 15 Ch. D. 96; 43 L.T. 95; on appeal (1881), 17 Ch. D. 772; 45 L.T. 229, dictum of Fry, J. considered. Legislation construed: Protectorate Native Law Ordinance, 1905 (No. 16 of 1905), s. 28: The relevant terms of this section are set out at page 219, lines 25-28. Protectorate Native Law Ordinance (Laws of Sierra Leone, 1925, cap. 170), s. 2: The relevant terms of this section are set out at page 215, lines 39-40. Kempson for the plaintiff; Barlatt for the respondent. TEW, C.J.:

The plaintiff is the Paramount Chief of the Kakuwa Chiefdom 15 in the Protectorate, and the defendant is a native of Freetown in the Colony. The plaintiff, suing on behalf of himself and the Tribal Authority of the Chiefdom, seeks to recover possession of two portions of land at Bo, comprising together an area of 180,000 sq. yds., which have for a long time been in the occu- 20 pation of the defendant. This action was first tried in 1927, and there were then two other plaintiffs who were described as "land owners." The plaintiffs were successful in that action; but in March 1930 the West African Court of Appeal ordered a rehearing, mainly on the 25 ground that there was not sufficient material on which a decision could be arrived at. At the new trial one of the plaintiffs described as "land owners" was reported to have died, and the names of both these plaintiffs were struck out by consent, it being agreed that Kamanda Bongay had sufficient interest in the land to enable 30 him to maintain the action on behalf of himself and the Tribal Authority. Here it may be as well to explain that the Tribal Authority are, in the words of one witness, the "big men of the Chiefdom," a description perfectly clear to the native mind. They are in fact 35 a kind of executive council on whose advice the Paramount Chief frequently acts, even though he is not bound by it. In the Protec torate Native Law Ordinance (cap. 170), s. 2 the term is defined to mean "Paramount Chiefs and their councillors, and men of note, or Sub-Chiefs and their councillors, and men of note," and this 40 definition was described by Mr. Bowden, who is in charge of the

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Southern Province in which Bo is situated, as a reasonably sufficient description of the term in its customary meaning. The history of the defendant's occupation of the land in question is of much importance and has to be considered in detail. For the earlier part of it we are dependent on the defendant alone, none of the other witnesses being old enough to remember it. He first came to Bo in 1890 when Otigua was the Paramount Chief, and took up his abode with one Yeregute whose daughter, Jenineh, he married. Jenineh was not a young woman at the time and has long since died, leaving no children. A few years later the defendant married Mamawa, a daughter of Chief Bongay, by whom he has one daughter, Rebecca. In 1892 the defendant went with Y eregute to Otigua and asked for and was allotted a piece of land outside the town. The boundaries of the land were pointed out by Otigua and his chiefs, and a large barn was built by them for the use of the defendant. Bongay, who was father of the plaintiff and at that time "Speaker", or Prime Minister, to Otigua, supervised the work of building. In 1894, according to the defendant, Otigua and his Chiefs signed a document, Exhibit DD, relating to this land which is dated March 9th, 1894 and is in the following terms: "We the undersign do hereby grant to Frederick S. Macauley and his Successors; residence (sic) trader of Bo Native of Freetown Sierra Leone, This nineth (sic) day of March in the year of our Lord one thousand eight hundred & ninety four a portion of land situated on the North by Hanar town on the south by Ticonkoh road on the East by Commenda town on the West by a village of vandee and a mark between for the aforesaid Fred S. M'Cauley valuable services & friendly gifts done to us from time to time. This we do as an everlasting memorial in presence of our children and subjects. Witnesseth by their marks to same drawn in two copies." This document is of course of no value as affecting the defendant's title, but it is of interest in other ways. The stamps affixed to it, as is agreed, were not in circulation in 1894, and the document, if executed then, certainly could not have been stamped then. The defendant's explanation is that in 1897, being told that the document was valueless without stamps, he had facsimiles of both copies made, stamped them, and destroyed the originals. This amazing story, coupled with the defendant's statements as to the date of the death of Otigua and matters connected therewith,

P.C. BONGA Y v. MACAULEY, 1920-36 ALR S.L. 212 c.c. gives rise to serious doubts whether Otigua and his chiefs ever signed any such document at all. A document which appears to be the other copy is also in evidence in this action, having been put in by consent, and is marked Exhibit B2. It is not an exact copy of Exhibit DD, as it lacks several signatures, including that of the witness to the marks, and many of the words are either different or differently spelt; nor does it appear to be written by the same hand. No attention was called to this other copy at the trial, and it must be considered to be without any particular significance, except in so far as the differences mentioned cast additional doubt upon the truth of the defendant's story and the authen ticity of either document. In 1902 the government required some of the land occupied by the defendant for railway purposes, and the following letter was addressed to him on August 26th, 1902 by the District Com missioner, Mr. Wallis: "Sometime ago you purchased a piece of ground from Chief Bongay of Bo; near of (sic) Boat a trifling cost. This piece of ground is at present I understand unculti vated and covered with bush, and is required by the Government for the purpose of erecting temporary quarters for some of the European engineers for the completion of the time. Chief Bongay informs me that he is willing to give you another piece of grounds (sic) in exchange for your present property, equally as good if not better than the ground in your possession now. His Excellency the Governor is anxious that this matter should be arranged between yourself and the Chief, so I shall be much oblige (sic) if you will approach him on the subject and when arranged inform the engineer at Bo of the exchange.'' The original of this letter has been lost and a copy, apparently made by a somewhat illiterate person, was put in by consent. In pursuance of the arrangement proposed in that letter, the defendant received from Chief Bongay, who was then the Paramount Chief, a piece of land in exchange for that taken, and he has a document purporting to have been executed by Chief Bongay and dated December 25th, 1902, in which the land was said to be granted to the defendant "as his personal property forever." On November 25th, 1904 the Colonial Secretary wrote the following letter to the defendant:

"I am directed by His Excellency the Governor to ask whether you want certain land situated near Bo purported to be granted to you in the year 1894, under a written agree ment with Chief Oterguah and Others. His Excellency directs me further to point out that at present your title to the land is void." This letter was apparently written in consequence of a letter under cover of which the District Commissioner at Bandajumah had forwarded the alleged agreement of 1894 to the Governor. The Governor shortly afterwards visited Bo and subsequently addressed to the defendant a letter dated January 11th, 1905 which is of the utmost importance in its bearing on the facts of this case. The letter, which is signed by the Governor himself, runs thus: "I think it is desirable that a record should be made of the result of the recent interview between the Regent and representative men at Bo and ourselves with reference to the land occupied by you at Bo, especially as a complete agree ment on the subject was arrived at. The land in question was granted to you by the Chief and representative men for the purpose of cultivation. It follows that the land will remain your property so long as you cultivate it in accordance with the conditions as to culti vation subject to which the land was granted. At the time of the grant you contracted a marriage in accordance with native law with the daughter of the Chief and as a result the Chiefs will on your death recognise the right of the children by this marriage to succeed to the land. The native custom does not permit of your sub-letting the land and consequently you have no right to do so. With respect to the 6 or 7 building lots which you have sub-let it was arranged with the Regent that he would order the natives who were in occupation of some of the lots to quit them unless they paid you the agreed rent. With regard to the lots occupied by Sierra Leoneans the matter must remain in abeyance pending the coming into operation of a law which is about to be submitted to the Legislative Council. I propose establishing a school for the sons of Chiefs at Bo. At this school agriculture will be one of the subjects taught to the pupils, and when the time arrives I propose considering whether the tuition in agriculture cannot be