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Joe Sandy V. P.C. Johannes B. Hotogua and Anor (1952) LJR-WACA

Joe Sandy V. P.C. Johannes B. Hotogua and Anor (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Tort—False imprisonment—Defence of lawful imprisonment—Onus on defendant.
Appeals in Civil Cases—Mistake on onus affecting view of evidence. Native Court—Member a party to suit—of Court vitiated.


The plaintiff claimed damages for assault and false imprisonment. The matter arose thus:—

The defendants, who were the Paramount Chief and a member of the Tribal Authority, offered the plaintiff money to vacate his house as the land had been leased to someone, but he refused. Then one L.M., also a member of the Tribal Authority, sued him for possession. Before the day of hearing in the Native Court, the defendants and L.M. demised the land by lease.

At the hearing, according to the record, L.M. sat as a member of the Court; judgment was given in favour of L.M. for immediate possession. Some days later the present plaintiff was taken and detained, for which he sued the defendants as stated. Their defence was that the imprisonment was in lawful execution of the judgment of the court. They alleged a second sitting of the Court at which the plaintiff was defiant and ordered to be detained. But of this there was no record.

The trial Judge proceeded on the assumption that it was the duty of the plaintiff to prove that the imprisonment was unlawful, and not being satisfied that the balance of probability on the evidence was in plaintiff’s favour, gave judgment for the defendants. The plaintiff appealed.

See also  Chief Kojo Bosor V. Chief Kessie (1934) LJR-WACA


(1) The trial Judge proceeded on the wrong assumption that it was for the plaintiff to prove that his imprisonment had been unlawful; this assumption affected his view of the evidence, and it would have to be reconsidered.

(2) The onus was on the defendants, who admitted the imprisonment of the plaintiff, to prove that it had been lawful. But in fact there was no further order of the Native Court and the imprisonment was unlawful.

(3) Further, a party to a suit cannot also act as judge in it; if he does, the decision of the whole Court is vitiated. As the party suing the present appellant for possession sat as a member of the Native Court hearing his suit, the judgment was void and the defendants could not justify the imprisonment.

Appeal allowed.

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