Aiah Momoh v Sahr S. Nyandemoh (CIV APP 70 of 2017) [2023] SLCA 7 (20 July 2023)

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THE COURT OF APPEAL OF SIERRA LEONE SRS” : = Appellant een: ‘AIAH MOMOH ppell | ren vere J 4s St | 2 MARU BAH —

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HON. MR. JUSTICE ALLAN B, HALLOWAY + ssc HON. MR. “USTICE SENGU M. KOROMA - ssc HON. MR. JUSTICE ELDRED F. TAYLORKAMARA - JCA COUNSEL M. P, FOFANAH ESQ. for the Appellant M.S. BANGURA ESO. for the Respondents JUDGEMENT = Delivered this 2¢thday ot July 2023 AIH MOMOH, the Appellant herein, being aggrieved by and dissatisfied with the Decsion/Judgement of the High Court delivered by the HON. MR. JUSTICE MONFRED M. SESAY JCA dated the 29% September 2017, hereby on the 13% December 2017, appeal the said Decision/Judgement on the following geunds:

4. That the Learned Trial Judge erred in fact and misdirected himself when he found anc stated in his Decision/Judgment that at the Trial at the Court below PW 4, ALHALI B/_ SAMURA testified that the Appellant had said, that the 1* Respondent indeed supported him but only after he, the Appellant had extracted the gravel and that when the Diam. was found they sold it and bought the house at Malama Thomas Street in Freetown the help of FAWAZ AYOUB, when in fact the said PW 4, ALHAJI BAl SAMURA ne\ testified or led such testimony, his precise testimony being that the Appeliant tld t meeting thatthe {* Respondent did not know about the Diamond and that himself th Appellant bought the 1% Respondent into the transaction after the Diamond had ber foundiwon and that it was as a result, that thé Appellant rejected sharing the procee from the sale of the diamond with the 1* Respondent.

2, That the Leamed Trial Judge erred in law and in fact to have substantially, iS Decision/Judgement relied on’the unused. documentary evidence outlining the ur

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EIS o\ parezactce, oe (area A % EES . testimony of MR. MANSO DUMBUYA, MR. FAWAZ AYOUB, MR. RAYMOND AWOONOR-RENNER and MR. AIAH ABU KOROMA, the said persons who did not testify as Trial witnesses.

3. That the said unused documentary, evidence outlining the untested testimony of the

é aforementioned persons did not legally and in fact support the findings and conclusions of the Learned Trial Judge in his Decision/Judgement.

4. That the Leamed Trial Judge erred in fact and misdirected himself, in finding that there ‘was no personal contact between the 1% Respondent and the Lawyer in the absence of the Appellant, by reason of paragraph 9 of the unused affidavit of MR. FAWAZ AYOUB outlining his untested testimony sworn to by him in respect of another matter, between SAHR SAMUEL NYANDEMOH and AIAH MOMOH MISC. APP. 49/98 in which the 1st Respondent herein was Plaintiff in that matter and the Appellant herein, the Defendant, ‘which said paragraph was to the effect that it was the Appellant who said the Conveyance ‘should be made in their names as joint owners.

5. That the Learned Trial Judge erred in law and in fact to have relied upon the uncorroborated and discredited testimony and evidence of the 1 Respondent herein in finding for and adjudging on a balance of probabilities in favour of the 1 Respondent.

6. That the Learned Trial Judge also erred in law and in fact to have found that the 2n Respondent herein was and is an innocent purchaser for value of the property at 37 Malama Thomas Street, Freetown without Notice, considering that the 2 Respondent

failed to participate in the proceedings at the Court below and or call any witnesses in his favour to prove his case and Counterclaim against the Appellant herein,

7. That the Learned Trial Judge ignored and discountenanced the decision of the Supreme Court in the celebrated case between AIAH MOMOH and SAHR SAMUEL NYANDEMOH SC. CIV. APP. 6/2006 (unreported) in which the said Court completely set aside the Decision/Judgement of the High Court, ordering the sale of the property at 37 Malama Thomas Street, Freetown and reverted the parties to the status quo ante by. ordering that the Trial should proceed afresh by the issuance of a Writ of Summons and a Statement of

Claim, if the said parties decide to resolve the issue of ownership of the said property, an order which the Appeliant herein complied with, making the 2 Respondent herein as Party to the same but who failed to defend the said action,

8. That the entire Decision/Judgement is against the weight of the evidence adduced and the submissions made to the Court below prior to the Decision/Judgement aforesaid, including the controverted testimony led and adduced by the 4s see

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Pa 3 OF APE x [SG ESES— -s (a are BE Wherefore, AIAH MOMOH the Appellant herein pray as follows: < Sreeen ce

41. That the Decision/Judgement delivered by the HON. MR. JUSTICE MONFRED M. SESAY JCA dated the 29 September 2017 be set aside in its entirety and that the orders ° granted therein be replaced with such orders as this Honourable Court deems fit and just in the circumstance, including by granting the reliefs prayed for in the Appellant's Statement of Claim dated the 9 July 2010.

2. That the Costs of this Appeal as well as that of the Lower Court, be borne by the Respondents herein jointly and or severally.

The HON. MR. JUSTICE MONFRED M. SESAY JCA, the Leamed Trial Judge on the 29% September 2017, ADJUDGED and ORDERED as follows:

1. That all the Reliets and or Remedies sought by the Appellant as contained in his Statement of Claim dated the 9" July 2010 be DISMISSED.

2. That the proceeds from the sale of the Diamond and the property at 37 Malama Thomas Street, Freetown in the Western Area of Sierra Leone belong EQUALLY to the Appellant and the 1* Respondent.

3, That proceeds from the sale of the property at 37 Malama Thomas Street, Freetown aforesaid, deposited at the SIERRA LEONE COMMERCIAL BANK LTD. account numbered 2023189 belongs EQUALLY to the Appellant and the Respondent and should be shared EQUALLY between them,

4, That the 2r# Respondent is a Bonafide purchaser for Value without Notice and bought the property at 37 Matama Thomas Street, Freetown aforesaid, by virtue of and in pursuance of a lawful order by a Competent Court of Law and therefore obtained a VALID and an UNIMPEACHABLE tle,

5. That each parly BEARS his own costs.

The Orders aforesaid, were granted further to the Trial of an action at the Court below, instituted by the Appellant herein by way of a specially indorsed Writ of Summons claiming against the 1: Respondent as follows:

1. A Declaration that the property known as 37 Malama Thomas Street, Freetown is the

property of the Appellant solely. L

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2. Rectification of the Conveyance dated the 25" August 1992 made~between ALHAJI TEJAN SOWE of the one part and SAHR SAMUEL NYANDEMOH and the Appellant herein, of the other part, by deletion of SAHR SAMUEL NYANDEMOH as purchaser or

7 alternatively, cancellation of the said Conveyance and the execution by the Master and Registrar of the Conveyance to the Appellant solely in fee simple absolute in possession. And against the 2" Respondent as follows:

1. Cancellation of the Conveyance made between SAHR SAMUEL NYANDEMOH and ADELIZA SHOWERS of the one part and UMARU BAH of the other part, dated the 1 July 2002, registered as No. 744/2002 in Volume 554 at page 121 of the Book of Conveyances kept in the office of the Registrar General in Freetown.

2. An account of all monies received in respect of the said property from the time the 2-¢ Respondent took up possession of the said property until possession is yielded up to the Appellant.

3. Payment of all sums due, for the occupation of the said property by the Respondents or alternatively Damages for Trespass.

And against the Respondents as follows:

1, Recovery of possession of all that property known as 37 Malama Thomas Street, Freetown.

2. Interest at the Bank lending rates on all sums due to the Appellant from the time the Respondents disposed the said Appellant of the said property until possession is yielded up to the Appellant.

3. A perpetual injunction restraining the Respondents or any of them from interfering with the use and enjoyment of the said property known as 37 Malama Thomas Street, Freetown or from receiving rents or profits from the said property or from entering or remaining on the said property.

The 1 Respondent denied the claims of the Appellant herein counter claiming in retum that

himself and the Appellant had equal shares of the proceeds of the sale of a Diamonds which was

used fo purchase the property known at 37 Malama Thomas Street and thus the property

aforesaid, was jointly owned by himself and the Appeliant in equal shares. On the other hand, the

2m Respondent who eventually purchased the property aforesaid, after its sale was ordered by x Br

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