Kamanda Bongay & Anor V. F. S. Macauley (1932)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land in the Sierra Leone Protectorate—Long continued possession by non-native with consent of Tribal Authority—Claim that such possession had ripened into absolute ownership—Defiance of Paramount Chief’s authority—Forfeiture by non-native of all his interest in the land as a result of such definance.

In the year 1892 the defendant, who came from the Colony of Sierra Leone and was not a native of the Protectorate, was granted about 37 acres of land at Bo in the Sierra Leone Protectorate by the then Paramount Chief of the Bo Chiefdom for purposes of cultivation. Part of this land the defendant sub-let for building purposes contrary to the terms of his grant, and some disputes between him and the Paramount Chief for the time being arose in or about the year 1904 which were eventually settled by the then Governor. The terms of settlement were embodied in a letter dated the 11th of January 1905 and addressed by the Governor to the defendant, and so far as material to the issues raised in this case those terms read as follows :—” 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 cultivation subject to which the land was granted.

” At the time of the grant you contracted a marriage in accordance *nth 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.” From the date of this letter the defendant remained in possession of the land, and apparently on good terms with the different Paramount Chiefs who succeeded one another at Bo, until the year 1926 though he continued to sub-let parts of the land to other non-natives for building purposes contrary to the terms of his grant.

In the year 1926 the plaintiff became Paramount Chief of the Big Ba Chiefdom. and disputes quickly arose between him and the defendant in relation to this Ind which finally culminated in the defendant putting forward a claim that Government had given him the land and that the Paramount Chief had no right to widen a country road which passed through it.

The plaintiff thereupon brought an action in the Sierra Leone Circuit Court claiming the land in question from the defendant and obtained judgment in his favour, but in March, 1930, the West African Court of Appeal ordervid a re-tr The case was accordingly re-tried before Tew C. J., who gave judgment in faVOIK of the plaintiff on the 5th of March, 1931, basing his decision on the ground tlutt the defendant had, by flouting the authority of the Paramount Chief, been guilty of conduct which rendered all his rights in the land liable to forfeiture. On appeal it was argued that the native custom proved before the trial Judge was a custom to drive away any non-native who flouted the authority of a Paramount Chief, and that as the defendant had not been driven away the custom had not been enforced and he remained in lawful possession of the land in question.

Held

That the plaintiff had adopted reasonable and sensible means of enforcing his claim, and that the Court below was right in finding that the defendant had, by native law and custom, forfeited his rights in the land. Per Macquarrie,,Aaing Chief Justice of Sierra Leone : (1) The promise in the Governor’s letter of the 11th of January, 1905, that the defendant’s children should( succeed him did not operate so as to render native law and custom inapplicable to his tenure of the land. (2) The Paramount Chief had an undoubted right to go on the land for the general good of the community, as a proved native custom and a one of the conditions of the defendant’s grant.