Ahmed v Bah (CIV APP 50 of 2007) [2010] SLCA 9 (11 March 2010)

IN THE COURT OF APPEAL OF SIERRA LEONE CIV APP 50/2007 BETWEEN: ELIZABETH AHMED APPELLANTS

AND ' '-' MEMUNA B~H ; . ..... ";- . \ " . ··, ~. J (By her Attorney ,..AMADU BALLA KAMARA) - RESPONDENT

Coram

HON MR·JUSTICE N C BROWNE-MARKE, Justice of Appeal HON MRJUS"PI'E E E ROBERTS, Justice of Appeal . HON MR JUSTICE SA ADEMbSU, Justice of Appeal. COUNSEL: N D TEJ AN-COLE esq for 1st ~ppellant J B JENKINS-JOHNSION esq for Respondent

Judgment

1. This is an appeal brought by MRS ELIZABETH AHMED,. as Appellant against the Judgment of the Honourable MRS JU~TICE A SHOWERS (hereafter Learned lrial Judge, L TJ) dated the 12th day of · November ,2007. In the Notice of Appeal, the Relief sought by the Appellant, is that this Court Sets Aside,the Judgement of the High Court , granting Recovery of Possession to the Respondent herein, and that it Orders Specific Performance of the enforceable contract between the Appellant's predecessor-in-title, her deceased husband ISSIR AHMED who was 1st Defendant in the Court below, and the 5th Defendant ir'l tr~ Court below, Herbert Thorpe. For reasons of clarity, I shall hereafter refer to MRS AHMED a:; Appellant; MADAM MEMUNATU BAH, as Respondent, and the other parties in the Court ~elow, to the number assigned to each of them in those proceedings. Since the Appellant only became a party in those proceedings after the demise of her husband, ISBIR AHMED, who was the 1st Defendant, the I

deceased shall be referred to as such in this Judgment . The z nd to 6th \ \ 0 Defendants · inclusive, did not appeal against the said Judgment .

2. The Grounds of Appeal are that the L TJ erred when she granted possession of the pr.operty situate at, and known as 3 Clarke Street, Tengbeh Town, Freetown, to the Respondent, notwithstanding that she had found, firstly, that the Respondent was not a bona fide purchaser of the legal estate for good consideration; secondly, that the Respondent qua purchaser, did not take reasonable care expected of a prudent , I purchaser t6 make the necessary enquiries before payment of the purchase price, and consequently had constructive notice of any encumbr~nces; thirdly, that the Respondent held the property subject t o the equitable interest of the 1st Defendant, and subsequently, by succession , the Appellant; and fourthly, that she was not in possession .

3. The Appellant contends also, that the decision of the trial Court ought t o have been based on the evidence adduced before it, and that on the facts found by the L TJ, the Respondent's case ought to have been dism issed by the L TJ. Further, that the L TJ misdirected herself in that she did not treat the Counter Claim of the Appellant as a separate and independent cause of action, as should have been the case, notwithstanding that its subject matter was the same as that in the Statement of Claim. It follows that once she had held that the contract between the Appellant and the 5th Def~ndant at the trial, was specifically enforceable, she ought to have granted Appellant's prayer for Specific Performance .

4. The Appellant contends further, that the award of Le50million ds Damages made in her favour, which said sum of money was to be paid to her, by the 5th and 6th Defendants in Lieu of Specific Performance , was mad~ Per Incuriam, and was a wrongful exercise of the Court's Discretion; and lastly, that the Judgment of the Court was against the weight of the

Evidence

5. On 21 November,2008 the Appellant filed Additional Grounds of Appeal to the effect that, firstly, that the L TJ injudiciously exercised her discretion in: favour of the Respondent regarding the Appellant's Counter Claim. She refers in particular to Page 199 Line 25 of the Record, , c;u:~q avers that there was no need for such an exercise, and that it hacf resulted in a miscarriage 6f justice. Finally, she contends that the~J~s,U e of Hardship was never canvassed by either party, and that the l,. TJ '/;.~':.. ., * . ~ J;:~ ,', ought to have allowed Counsel the opportunity to address her on this 't \ issue.

6. The appeal first came up for hearing on 21 October,2008 when we Ordered the filing of synopses, by Counsel on both sides. The Appeliant was to file hers against 13 Novetnber,2008; and the Respondent, against 21 November, 2008. Further oral arguments were fixed for 25 November, 2008. In the event, the Appellant filed her synopsis, together with the authorities cited therein, on 13 November,2008; and the Respondent, only on

28 January,2009. Brief additional arguments were heard on 29 January,2009 when Judgment was reserved.

7. Rule 9(1) of this Court's Rules,1985 states that" all appeals shall be by way of rehearing .... " Rule 31 states that this Court " ..... shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a Court of first instance, and may REHEAR the whole case ..... "This being the mandate of this Court, I shall dwell a bit on the facts of the case as presented in the High Court . I shall also bear in mind that the actual Trial Judge, RASCHID,J died before Judgment, and that with the concurrence of Counsel on both sides, SHOWERS,J was authorised to give Judgment on the basis of evidence led before her deceased brother. She thus had no opportunity to see and hear the witnesses who testified on both sides.

Pleadings and Preliminary Proceedings

8. The facts of the case, are as set in the Respondent's Statement of Claim, as amended, and her Defence to the Defendants' Defence and Counter Claim; and in the 1st Defendant's Defence and Counter Claim, and Reply to the Respondent's Defence to Counter Claim. The specially indorsed Writ of Summons was issued by the Respondent on 26 November,1996. In it, she claimed, inter alia, for the recovery of immediate possession of the house, land and premises situate at and known as 3 Clarke Street, Tengbeh Town, Freetown. The action was brought on her behalf by her Attorney, AMADU BALA KAMARA, who was appointed as such by virtue of a !'ower of Attorney dated 2 November,1996 and duly registered as No. 205 at page 98 in volume 65 of the Record Books of Powers of Attorney k.zpt in the office of the Registrar-General, Freetown . According to the Respondent's pleadi,ng, she became entitled to the fee simple estate, and to possession of this property by virtue of a Deed of Conveyance dated 10 October,1996 made between herself as Purchaser and the 5th Defendant, HERBERT THORPE. She paid the sum of Le32m for the property, then approximately equivalent to USD35,000. By lette r dated 18 October,1996; she as the new owner of the premises, gave notice to quit the property, in writing, to the deceased 1st Defendant, ISBIR AHMED, and i'o the other Defendants, who were residing there. The 1st Defendant, and the other Defendants for the reasons later stated in their joint Defence, did not give vacant possession to the Respondent, within the 7 day period stipulated by her. The Respondent also claimed mesne profits at the rate of USD8,000 per annum with effect from 25 October,1996 the date the Notice expired, until .deliver y up of possession .

9. Appearance was entered for the 3rd Defendant separately, by the late EDWARD AKAR Esq. Appearance for the other Defendants was entered by N D TEJ AN-COLE Esq, who also appealed, and argued th is appeal , on behalf of the Appellant . On 13 December,1996 the late EDWARD AKAR Esq filed a Defence on behalf of the 3rd Defendant, PASTOR MOMODU CONTEH. In that pleading, the 3rd Defendant denied all knowledge of the sale of the property to the Respondent . He averred that he only got to know about the sale when he received the letter dated 18 October,1996 from Respondent's Solicitor. He had been paying rent to the late 1st · Defendant whom he acknowledged as the owner of the property, and he was not in arrears of his rent.

10. By wa~ence and Counter Claim, dated 18 December,1996, the then 1" ~ Defendant, ISBIR AHMED, and the 2"d and 4th Defendants , brought action, not only against the Respondent, but also her Vendor, HERBERT AKINOLA ~LADIMAGE THORPE (hereafter HERBERT THORPE). In their Defence, the late 1st, and the 2"d and 4th Defendants, averred as follows: that they were tenants of HERBERT THORPE up to 17 June,1995 when the late 1st Defendant paid the final instalment of the purchase price for the property at 3 Clarke Street, to HERBERT THORPE, and that by accepting such payment, HERBERT THORPE became a Trustee of the property for and on behalf of the said pt. 2"d and 4th Defendants; that on dates prior to the date conveyance of the property was executed in her favour, Respondent was aware that the late ·15 t Defendant had become the owner of the property. These Defendants admitted receiving the letter dated 18 October,1996, and that as a resu lt of its contents, they instructed their Solicitors to reply to the same by \ \_3 respective letters dated 25 and 28 October,1996; that the late 1st Defendant was the freehold owner of the property; and that he and the other Defendants were in possession of the same at the time .

11. In their Counter Claim, the late 1st Defendant, and the 2nd and 4th Defendants, averred, inter alia, that by an Agreement in writing dated 20 September,l994 made between the late 1st Defendant, and HERBERT THORPE, HERBERT THORPE agreed to sell, and the late 1st Defendant agreed to buy the p~operty at 3 Clarke Street . The agreement provided, inter alia, fnat the 1st Defendant should pay HERBERT THORPE, immediately, the sum of Le4,300,000 as deposit, the full purchase price being Le15million. HERBERT THORPE acknowledged receipt of this amount from the late 1st Defendant. It was agreed also that the balance of the purchase price should be paid by instalments as and when demanded by HERBERT THORPE. As evidence of his good intent , HERBERT THORPE deposited with the late 1st Defendant, his title deed, i.e. the Deed of Conveyance dated 10 January,1994 and duly r.egistered, executed by his late father THOMAS EBUN OLADIPO T,HORPE (hereafter THOMAS THORPE) in his favour.

12. The late 1stDefendant paid a further instalment of Le10,124,000 to HERBERT THORPE on 15 May,1995 leaving an outstanding balance of Le576,000. HERBERT THORPE duly acknowledged receipt of this amount as well. On 17 June,1995 on demand made by HEBERT THORPE, the late 1st Defendant paid to him the final instalment of Le576,000, thereby completing payment of the full purchase price of Le15m. HERBERT THORPE duly acknowledged receipt of this final amount .also.

13. The late 1st Defendant averred further in his Counter Claim, that HERBERT THORPE well knew that he the 1st Defendant required the property in which he and his extended family had been staying, as a fully owned residence for himself and his extended family. This extended family included his mother-in-law and sisters-in-law, who had also been staying there for upwards of 3 years. But, it appeared that HER~ERT THORPE was wilfully refusing to complete the agreement for sale with the late 1st Defendant, despite several requests and the letter dated 23 June,1995 was addressed to him, for him to do so; thus the Counter Claim for him to remedy this default.

14. In the particulars of Special Damage, the late 1st Defendant claimed that on 10 October,1996 HERBERT THORPE wrongfully conveyed the property to the Respondent; that the Respondent had knowledge of the contract between the late 1st Defendant and HERBERT THORPE; and that she

and/or her agents enqu ired of, tenants and in-laws of the late 1st Defendant, and that sh~ and they knew, late 1st Defendant h<Jd bought the property . In the premises, the late 1st Defendant Counter Claimed for Specific Performance of the agreement between late 1st Defendant and HERBtRT THORPE;, Damages in Lieu of, or in addition to Specific Performance; Further or other Relief; and as against the Respondent, Cancellation of the Deed of Conveyance dated 10 October ,1996 conveying the property to her; a Declaration that the Respondent was a Trustee of the property for the benefit of the late 1st Defendant; alternatively, a Declaration that the Respondent was bound to convey the said property to the late 1st Defendant in accordance with the terms of the said agreement; if necessary, a Vesting Order; and lastly , an Injunct ion Restraining the Respondent and her servants and/or agents from disposing of, entering upon, or otherwise interfering with the said land.

15. The Respondent robustly joined issue with the late 1st Defendant on. his Counter Claim. She averred in her Reply and Defence to Counter Claim, dated 30 De.cember,1996, that prior to 10 October,1996 she had no knowledge of the matters pleaded by the 1st Defendant in paragraphs 2 and 3 of his Defence and Counterclaim, and that, in any event, as the leg<JI estate of the property was at no time vested in the 1st Defendant, he could not be the owner of the same. She was the bona fide purchaser for value of the legal estate for value, and relied on Section 2 of the Registration of Instruments (Amendment) Act,1964 . In her Defence to the 1st Defendant's Counter Claim, she reiterated that she was not aware. of the transactions between 1st Defendant and HERBERT THORPE, and that her searches at the Registry had not disclosed any encumbrance on the property; and that as the legal estate in the property had not been vested in the 1st Defendant, the legal principle of NEMO DAT QUOD NON HABET applied- HERBERT THORPE could not give what he did not have. Finally, she averred that 1st Defendant's Counter Claim disclosed no reasonable cause of action.

16. Irt his Reply, also dated 30 December,1996 the Respondent joined issue with the 3rd Defendant upon his Defence. The Respondent .also on the \ t tt same day, entered the action for trial, and gave Notice of the scime to \\.5 the Defendants. On 26 February,1997 MASSALLAY,J (now deceased) fixed Monday 10 March,1997 as the date of trial, upon application made to him for a speedy trial by the Respondent. For reasons which are not disclosed in the Record, but which are not hard to find , the trial did not actually take off in 1997: the military coup occurred on 25 May,1997 ; th e civilian Government was restored the following year; but in January,1999 Freetown ~as again invaded by rebel forces, and Law and Order was again disrupted. from the' Record (page 58) it appears that the act ion was again on 22 June,1999 entered for trial by the Respondent on 6 July ,1999 though the trial did not commence on the latter date .

17. The first proceeding in the Cause is recorded to have been taken on. 12 November,1998 when MR JENKINS-JOHNSTON appeared for the Respondent, and MR TEJ AN-COLE appeared for 1st, 2nd & 4th Defendants , before the late RASCHID,J- page 101; but the trial proper only· commenced on 25 Januqry,2000 before the late RASCHID,J- page

106. On Monday 23 April,2001 RASCHID,J Ordered, pursuant to an Application made by the Respondent (pages 60-75), that HERBERT THORPE and THOMAS THORPE be joined as 5th and 6th Defendants to the Respondent 's Original Action, and that pleadings be amended if needs be, and that the same be served- pages 76 - 77;and pages 112-113. Of note, in that Application, is that the Respondent exhibited to it a letter , marked "C", pages 69-70, dated 1 December,1998, addressed to THOMAS THORPE in which her Solicitor, MR JENKINS-JOHNSTON states that " ... As you are no doubt aware, hearing of the above matter has already commenced, and the witnesses should start their testimony within the next fortnight. Reading through the various papers, it seems to me that your son has committed a very serious fraud on both parties and then left the country. It has even been suggested that he acted in complicity with you. In the circumstances I think it will be in your interest and especially in the interest of your son for us to meet and explore ways of getting out of this mess. The fact that your son has left the country does not change anything because INTERPOL can reach him wherever he is."

18. I have quoted this letter at length, because it bears on the issue of whether th.e offer of alternative accommodation was made either to the Respondent, or to the 1st Defendant . Though MR JENKINS-JOHNSTON refers to his " .... reading through the various papers .. " it is quite. clear th<lt \ \ b as far back as 18 December,1996, the date of filing of the Defence and Counterclaim, i.e. two years before 1998, he already knew that 1st Defendant was claiming that HERBERT THORPE had agreed to sell the property to 1st Defendant, and that he, HERBERT THORPE had played a trick on the Respondent. And the Application itself was only made in 2001, nearly 5 years after these facts had become known to Respondent's Solicitor . Could it be the case that negotiations had been going on between the Respondent and the THORPES for a return of the purchase price, and that the trial only proceeded because this did not happen? Was it part of a realisation that Respondent should be directing her angst at HERBERT THORPE, and should be demanding her money back from HERBERT THORPE for fooling her, and not against the Defendants who really had nothing to do with HERBERT THORPE's trick? Whether this is so or not, will become apparent on going through the evidence. HERBERT THORPE did not enter appearance to 1st Defendant's Counter Claim, dated 18 December,1996, but THOMAS THORPE entered appearance to the amended Writ on 11 May,2001 though he only got a Solicitor , MR EDWARDS to file a Defence on his behalf on 30 November,2004. According to MR TEJ AN-COLE in his address, at page 155, HERBERT THORPE was not served as he could not be found.