Duramani Ngelegla V. Tribal Authority Nongowa Chiefdom (1953) LJR-WACA

Duramani Ngelegla V. Tribal Authority Nongowa Chiefdom (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Tort—False imprisonment—Onus of proving legality.
Courts Ordinance, section 40—Bona fide acts in judicial capacity.
Tribal Authority Ordinance—Notice of intended action—Section 19 (2) of the Ordinance—Lack of notice not pleaded—Rules of Court, Order 16, rule 1.

Facts

The action was for damages for assault and false imprisonment, against the Tribal Authority, whose agent, the Paramount Chief, ordered the plaintiff into custody; later he was taken before the Native Court, which sentenced him to imprisonment. He claimed both in regard to the detention before the trial and to the imprisonment after conviction.

In the defence the detention before the trial was denied (but counsel admitted the arrest, in the course of the case) and it was averred that the Paramount Chief had acted judicially in summoning the plaintiff before the Native Court, which also acted judicially, and section 40 of the Courts Ordinance was invoked (which protects bona fide acts performed in a judicial capacity).

At the close of the case for the plaintiff counsel for the defence made a submission that there was no case; and the trial Judge dismissed the action on the ground that it had not been proved that the Native Court lacked jurisdiction; he also held that the plaintiff had failed to prove malice and that the evidence showed that the defendants had acted judicially.

The plaintiff appealed, and the defendants (as respondents) repeated a submission (rejected by the trial Judge) based on section 19 (2) of the Tribal Authority Ordinance (Cap. 245) (text in judgment infra) that notice of the intended action had not been given. The plaintiff relied on Order 16, rule 10 (text in judgment infra), which implies the performance of conditions precedent, unless expressly contested—which was not done in the defence put in below.

Held

(1) The action was against the Tribal Authority; the first arrest, which was admitted, was its ministerial act, and therefore the Tribal Authority ought to have been called upon to justify the detention before the trial;

(2) In so far as the action related to imprisonment after conviction, an action against the Tribal Authority did not lie.

Held also: In view of Order 16, rule 10, want of notice under section 19 (2) of the Tribal Authority Ordinance not having been specially pleaded, this defence was not available.

Appeal allowed; case remitted for re-hearing in part.