By Safi Jimba
Trespass to the person assault (V)
Held: (1) The plaintiff, having failed to prove that he had any greater right than the defendant to use the building, was in the circumstances a trespasser.
(2) It not having proved that the plaintiff had refused to leave the building after having been requested to do so, the assault could not be justified
(3) In awarding damages the provocative behavior of the plaintiff should be taken into consideration.
(4) That the claim against the second defendant was barred by section 2 of the Public Officers’ Protection Ordinance.
GREEN J.: “In this action there is no claim for trespass to the building, and the question as to whether the African church, or the plaintiff through it, has an exclusive right to the use of it would be immaterial were it not that the plaintiff has sought to show that when committing the alleged assault the defendant was interfering with the exercise, by plaintiff, of rights of property in the building…Had the plaintiff been ejected at a time when he was conducting services or holding school the position of things would have been very different. But this was not the case. On the other hand, the defendant Milbourne had been invited to make use of the building by the head chief of the town upon whose family land it is claimed that it stands and who, though not a member of that church were present while the building was being used by the defendant, and no protest was made as to his use by any of them and it is noticeable that Taylor, the local agent or preacher of that church, actually sent for a chair from his onw house for the defendants…