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Z. H. PARKER v. TRIBAL AUTHORITY OF KAGBORO CHIEFDOM

JELR 84170 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]

Coram
FOSTER-SUTTON, P., COUSSEY, J.A., AND KINGSLEY, J.

Judgement

*Page 328 Tort-False imprisonment-Imprisonment under Native Court's Order- Bona fide acts in reasonable belief that Court had jurisdiction-Offence against on customary law within Court’s jurisdiction.

The appellant had passed as a Sherbro, led the life of a native, obtained a trader’s licence issued only to natives, held land as a native and frequently sued in the Native Court of the Chiefdom.

The Native Court fined him for contempt; he said he would not pay and was committed to the lock-up; some persons improperly contrived his release; he ate would not obey a summons and was arrested under a warrant and sentenced for the defying the authority of the Court. Later the District Commissioner decided he was a non-native and therefore not amenable to the jurisdiction of the Tribal Authority, which he then sued for false imprisonment but failed; and he appealed, arguing that the Tribal Authority had not acted bona fide in arresting him, and that as regards the second imprisonment, which was the one complained of on appeal, the charge against him was one under section 15 of the Tribal Authority Ordinance of conspiring or attempting to undermine the lawful authority of a tribal authority, which could not be prosecuted without the consent of the Governor, and that meant that his arrest was unlawful.

Held: The imprisonments were upon the orders of the Native Court, and the Native Tribal Authority, the defendant, was consequently not liable. And the circumstances also showed that both the Native Court and the Tribal Authority were acting bona fide and had reasonable grounds for believing that the appellant was subject to their jurisdiction.

Held also: The argument drawn from section 15 of the Tribal Authority Cap. Ordinance was untenable as the record of the Native Court, which was in evidence, showed that the appellant was punished the second time for defying which the authority, etc., an offence against native customary law within the jurisdiction of the Court under section 7 (2) (b) of the Native Courts Ordinance (Cap. 149).

Appeal by the plaintiff: No. 8/53.

A. B. Wellesley-Cole for the Appellant. R. B. Marke, with him B. Tejansie, for the Respondents.

The following judgment was delivered: Coussey, J.A. In this action for damages for unlawful assault and false imprisonment against the Tribal Authority of Kagboro Chiefdom, the plaintiff, a trader, claimed that on the 20th June, 1950 he was assaulted and imprisoned by the defendants or their servants and agents, that on the 22nd June he was further assaulted and chained by the defendants and that on the 24th June he native was again assaulted and unlawfully detained by the defendants from the 24th to the 25th June, 1950.

The defendants by their defence denied that any bodily injury was inflicted on the plaintiff or that he was dragged or flogged by the defendants servants as he alleged and that if any injury was suffered by the plaintiff, it was brought by the upon the plaintiff himself by his own action in resisting lawful arrest.

The defendants further averred that the two detentions which they admitted were in pursuance of the orders of the Kagboro Native Court.

The action was heard and determined by the learned Chief Justice who, after considering the evidence, rejected the plaintiff's evidence of assaults and held that the imprisonments complained of on the 20th and 22nd June were upon the orders of the Native Court and that the defendants were consequently not liable. As to the alleged imprisonment on the 24th June the Court below held that the plaintiff was in fact arrested in the afternoon of the 22nd June, he was bailed on the following morning and the charge against him of defying the authority of the Paramount Chief and the Tribal Authority was heard and determined by the Native Court on the 24th June and that there had not therefore been any unreasonable detention. The plaintiff's action was dismissed.

He now appealed to this Court.

The first ground of appeal is that as the plaintiff established some six months later by a decision of the District Commissioner that he is a non-native and therefore not amenable to the jurisdiction of the defendants, there was no evidence to prove that the defendants acted bona fide in arresting him. But there was evidence which is set out in the judgment appealed from that the plaintiff had passed in the district as a Sherbro, his life was that of a native of the district, he had obtained a particular kind of traders licence which is issued only to natives, he held land as a native and he had frequently sued in the Native Court of the Chiefdom; indeed all the bother started by the plaintiff insisting that his actions should have precedence over the other suits pending for hearing in the Kagboro Native Court on the 20th June. In these circumstances it seems to me that not only we are the defendants acting bona fide, but that they had reasonable cause to believe that the plaintiff was subject to the jurisdiction of the Native Authority and the Native Court.

In the course of his submission, Mr. Wellesley Cole for the plaintiff stated that he did not now complain of the arrest on the 20th June, but only of that on the 22nd June and he argued that the charge against the plaintiff of defying the authority of the Paramount Chief, etc., was in fact a charge under section 15 of Cap. 245, the Tribal Authority Ordinance, of conspiring against or attempting to undermine the lawful power and authority of a chief or tribal authority, a charge which, according to the proviso to section 15, shall not be prosecuted on without the prior consent of the Governor and that as such consent had not been given the arrest was unlawful. On the facts before the Court this argument is untenable. The Record of the Native Court was admitted in evidence without objection. It is the best evidence of the occurrence.

On the 20th June the Native Court had fined the plaintiff 30/-for contempt of Court. He declared that he would not pay the fine. Thereupon he was committed to the lock-up. Certain persons improperly contrived the plaintiff's release from detention. He was still at large on the 21st June when, on his refusal to surrender himself, he was summoned to attend at the Native Court but refused to do so. Finally the Court issued a warrant for his arrest and he was arrested on the 22nd June for defying the authority, etc., an offence against native customary law and one within the jurisdiction of the Native Court under section 7 (2) (b) of the Native Courts Ordinance (Cap. 149).

A man hiding from arrest as the plaintiff did and sheltering behind and enlisting the assistance of others to ignore the order of a chief to attend a Native Court may flagrantly defy the Chief and the Native Authority, as was later held by the Native Court when the plaintiff was tried, but he is not conspiring against or attempting to undermine the Chief or Tribal Authority.”

I am in full agreement with the learned Chief Justice that this action fails entirely and should not have been brought and I would dismiss this appeal with costs.

Foster-Sutton, P. I concur. Kingsley, J. I concur.

Appeal dismissed.

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