Paul v Samuels, 1920-36 ALR S.L. 26

THE AFRICAN LAW REPORTS White Book is required and can conveniently be applied here, then by all means have recourse to it, although you may find no reference whatever to it in the local orders. But I am no longer free from this doubt when I consider, and 5 am faced by, the fact that both of the local orders, LI and LII, do clearly make provision for the disposal of several matters by way of originating summonses. When, therefore, it is found that provision is made for pro­ ceeding by way of originating summons in certain respects and 10 matters, it surely cannot be held that the condition required to be satisfied before the White Book is resorted to and comprised in the words - "Where no other provision is made by these rules .... "has been complied with. I agree, therefore, that the whole of O.LV of the White Book 15 was intentionally omitted, and that the questions and matters here sought to be dealt with by originating summons must be dealt with by a method which the legislature must be taken to have decided in its wisdom was the better suited to the require­ ments and convenience of this Colony, i.e., by administration suit. 20 Case stated answered in the negative. 25 PAULv. SAMUELS and THORPE Full Court (Purcell, C.J., Sawrey-Cookson, J. and McDonnell, Ag. J.): February 14th, 1922 [1] Criminal Law - assault -lawful excuse -no assault if churchwardens use reasonable force to remove intruder from pew assigned to another: The Constitution of the Sierra Leone Church, art. 13 confers an unfet- 30 tered discretion upon its churchwardens, under the directions of the Parochial Committee, to allot pews and re-allot them whenever they may consider it necessary to do so and they may therefore deprive a parishioner of his pew despite the fact that he has paid his pew rent regularly; the churchwardens are also entitled to use a reasonable amount of force to remove a parishioner who intrudes on a pew assigned to 35 another (page 28, lines 33- page 29, line 18; page 30, lines 36-41; page 31, lines 5-27). 40 [ 2] Ecclesiastical Law- churchwardens- functions- seating of parishioners­ Constitution of Sierra Leone Church, art. 13 confers unfettered dis­ cretion on churchwardens to allot pews- regular payment of pew rent does not entitle parishioner to retain pew- churchwardens may use reasonable force to remove intruder from pew: See [1] above. 26 ,. PAUL v. SAMUELS, 1920-36 ALR S.L. 26 F.C. [ 3] Ecclesiastical Law - law applicable - customs of Church of England - no binding force in Sierra Leone because have not existed in Colony since time immemorial: Customs of the Church of England which were introduced into Sierra Leone upon the establishment of that Church in the Colony do not have binding force since they have ex hypothesi not existed in Sierra Leone since time immemorial (page 29, lines 6-18). 5 [ 4] Jurisprudence - customs and usage - existence since time immemorial - customs of Church of England have no binding force in Sierra Leone because have not existed in Colony since time immemorial: See [ 3] above. The plaintiff brought an action in the Supreme Court against 10 the defendants claiming an injunction and damages for assault. The plaintiff and second defendant were parishioners of Kissy Parish Church of which the first defendant was a churchwarden. A certain pew was originally allotted to the second defendant but when he failed to pay the pew rent it was assigned to the plaintiff. 15 The plaintiff paid his pew rent regularly but was later notified that the churchwarden had re-allotted the pew to the second defend- ant. When the plaintiff continued to occupy the pew, the first defendant, aided by the second defendant, attempted forcibly to remove him. 20 The plaintiff then brought the present proceedings claiming damages for assault and an injunction to restrain the defendants from repetition of the assault or interference with his free use of the pew. He contended that since he had paid his pew rent regu- larly the churchwarden had no right to deprive him of his pew and 25 the attempt to remove him from it was therefore unlawful. In reply the defendants contended that the Constitution of the Native Pastorate Church, art. 13, conferred an unfettered dis­ cretion upon churchwardens to allot pews and that the plaintiff had therefore been lawfully deprived of his pew. They also con- 30 tended that there was no assault upon the plaintiff since a church­ warden is entitled to use reasonable force to remove an intruder from a pew assigned to another. The court (Purcell, C.J.) held that the plaintiff's claim should be dismissed but stated a special case for the opinion of the Full 35 Court, seeking a ruling on the question whether the appropriation of pews by the churchwardens under art. 13 of the Constitution of the Sierra Leone Church is an absolute appropriation subject only to the due payment of pew rent. The question was answered in the negative and the suit 40 dismissed. 27 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS Case referred to: (1) Asher v. Calcra{t (1887), 18 Q.B.D. 607; 56 L.T. 490. Graham for the plaintiff; C.E. Wright and Beoku-Betts for the defendant. PURCELL, C.J.: The case stated by the Chief Justice is as follows: "The plaintiff's claim in this action reads as follows: The plaintiff's claim is for damages for assault, £120, and for an injunction to restrain the defendants from repetition of the said injury or molesting or obstructing him in the free use and enjoyment of his pew at the Parish Church of Saint Patrick, in the village of Kissy. The facts of this case may be thus briefly summarised. In consequence of a refusal by the defendant (Thorpe) to pay his pew rent for a pew (No. 9) in Kissy Parish Church some time during 1918, the pew in question was allotted to the plaintiff (Paul). Subsequently this pew (No. 9) was re-allotted to Thorpe, as from January 1st, 1921, and notice was served on the plaintiff to that effect. Notwithstanding such notice plaintiff occupied this pew on Sunday, January 9th, 1921, and remained in it during the service, although invited to move out by both defendants, and it is alleged that on this occasion they both attempted unsuccessfully to pull him out of this pew, which constituted the assault complained of. The question at issue here is in reality a very simple one, and it is this. What construction is to be placed on the following words in art. 13 of the Constitution of the Native Pastorate Church? "They" (meaning the churchwardens) "shall, under the directions of the Parochial Committee, appropriate pews and collect the pew rents." It is, as I think, to give the churchwardens and Parochial Committee an unfettered discretion, and this interpretation of the words of art. 13 is strengthened by the analogy of the rights of church­ wardens in England. It is clear that in England churchwardens may, in their discretion, direct persons where to sit, either at a particular service, or for an indefinite period (11 Halsbury, 1st ed., at 470; Corven's Case, 12 Co. Rep. 105; Pettman v. Bridger, 1 Phillim. 316, 323), and that churchwardens can- 28 lP· PAUL v. SAMUELS, 1920-36 ALR S.L. 26 F.C. not make an irrevocable assignment of a pew, or divest themselves of the right to re-arrange sittings when desirable (11 Halsbury, 1st ed., at 470, 471; Corven 's Case; Pettman v. Bridger). But it has been argued in this case that a custom existed to allot a pew year after year in perpetuity to indi- 5 viduals and their next-of-kin. The evidence did not support the contention that a binding custom existed, for the plaintiff's witnesses could go no further than to say that, except in one case, they had never known a person who paid his pew rent regularly to be deprived of his pew, and this 10 evidence is consistent with the defendants' contention that there was no binding custom, but only a practice binding upon no-one. Further, such a custom, if existing, is not binding, because it has not existed from time immemorial. The Church of England was established in Sierra Leone, and 15 the Colony itself founded, only within comparatively recent years. There can be no binding custom unless it has existed from time immemorial. Again, such a custom as alleged by the plaintiff would be unreasonable, for it would prevent the churchwardens from 20 exercising their functions at all, once a pew has been allotted to a person, the plaintiff's witnesses going so far as to say that whatever a man did, so long as he paid his pew rent, he could insist on having his pew. The case of Reynolds v. Monkton, 2 Mood. & R. 384, is clear authority that a church- 25 warden may use sufficient force to remove a parishioner who intrudes on a pew assigned to another. In this case, whatever degree of force was used it was not sufficient to remove the plaintiff from the pew, for he remained in it throughout the service on that Sunday morning, January 9th, 1921. 30 The evidence as to the force used by the defendants given by the different witnesses for the plaintiff even differed very greatly, and was not consistent. The witnesses for the defence denied that there was anything more than a gentle touch. But in any case all agreed that the force used was not sufficient to 35 remove the plaintiff from the pew, and in my opinion the defendant (Samuels), who was a churchwarden, was within his strict legal rights in the course he adopted, and from the evidence it is clear that if Thorpe did touch the plaintiff, he acted in a merely subsidiary manner, and under Samuels' 40 direction. Although personally I entertain no doubt whatever 29 THE AFRICAN LAW REPORTS on this particular matter, I have been much pressed to state a case under the provisions of s. 12 of the Supreme Court Amendment Ordinance, 1912, and I have decided to take that course, inasmuch as the plaintiff is a poor man, and an 5 appeal in the ordinary course is beyond his pocket. I there­ fore reserved the following question for the decision of the Court of Appeal: Is the appropriation of pews by the church­ wardens under the direction of the Parochial Committee, as set forth in art. 13 of the Constitution of the Sierra Leone 10 Church, an absolute appropriation subject only to the due payment of the pew rent? If the Court of Appeal answer this question in the affirmative, then this case must be remitted to the court below to be dealt with accordingly, but if otherwise. (as I have held in this judgment) then the claim in 15 this action will be dismissed, with costs." The question at issue here has been very fully set out in the special case, and therefore need not at any length be recapitulated. The question on which this court is invited to give its decision is whether the appropriation of pews by the churchwardens under 20 the direction of the Parochial Committee, as set forth in art. 13 of the Constitution of the Sierra Leone Church, is an absolute appropriation, subject only to due payment of pew rent? That is to say, when once the churchwardens have allocated a seat to a person, and such person duly pays his pew rent, can the church- 25 wardens, under the direction of the Parochial Committee, give such person notice that they have appropriated the seat in question to another person? That is what has happened in the present case. Thorpe originally had the pew allocated to him - but in consequence of non- 30 payment of the pew rent, the pew was allocated to Paul, who made no default in payment of pew rent. Subsequently, in spite of this fact, the churchwardens, under the directions of the Parochial Committee, re-allocated the seat to Thorpe, and gave Paul notice to that effect - but Paul persisted in still occupying 35 the pew, and it was an ineffectual attempt to eject him from it that has led to the present litigation. In my opinion, and for the reasons very fully stated in the special case, I think the question should be answered in the negative - that is to say, such appro­ priation is not an absolute one, and that- as a matter of law- 40 the churchwardens have the power to re-appropriate the pews in the church whenever they may consider it necessary to do so. 30 p PAUL v. SAMUELS, 1920-36 ALR S.L. 26 F.C. SAWREY-COOKSON, J.: I agree, and only wish to add that I have no doubt at all that the plaintiff's claim for damages here should be dismissed upon the only construction possible to put upon art. 13 of the Constitution of the Native Pastorate Church. The learned Chief 5 Justice has held that the words of that article give the wardens an unfettered discretion in the matter of allotting pews, and I should agree that by themselves those words could not reason- ably bear any other construction; but when it is also seen that, from the earlier part of that article, the churchwardens are elected 10 once in each year, it becomes more than ever impossible to construe those words in any other sense. To do so would also be to run counter to what has long ago been decided, viz., that "churchwardens cannot make an irrevocable assignment, or divest themselves or their successors of the power of making "a fresh 15 arrangement whenever circumstances render it desirable." (See 11 Halsbury 's Laws of England, 1st ed., at 4 70-4 71.) In support of that pronouncement of the well-established law on the subject, among others the case of Asher v. Calcraft (1) is cited as authority for the proposition that churchwardens are competent to direct 20 where persons shall sit, even in a church where certain of the seats or pews are free. A fortiori, therefore, where it is specifically made part of the annually elected wardens' prerogative to allot seats or pews in return for a rent therefor, it is manifest that any intruder or trespasser in a pew or seat so allotted may, by the use of a not 25 unreasonable amount of force for the purpose, be removed there­ from. As I have already said, therefore, the question must be answered in the negative and the claim dismissed with costs. McDONNELL, Ag. J. concurred. 30 Suit dismissed. 35 40 31