Aiah Momoh v Sahr S.Nyandemoh (SC CIV APP 6 of 2006) [2008] SLSC 2 (9 June 2008)

© s.c. civ. APP 6/2006 | INTHE SUPREME COURT OF SIERRA LEONE BETWEEN: ‘AIAH MOMOH. - APPELLANT : AND SAHR SAMUEL NYANDEMOH - RESPONDENT

Coram

HON. MR.JUSTICE G.B. SEMEGA-JANNEH = 38.C. HON. MR. JUSTICE BODE RHODES-VIVOUR = —JS.C. HON. MRS. JUSTICE S. BASH-TAQI sip fstdiS.Cs HON. MS. JUSTICE S. KOROMA caer HON. MR. JUSTICE S.A ADEMOSU - SA 7 SOLICITORS/COUNSEL S.M. SESAY ESQ. FOR THE APPELLANT N.D. TEJAN-COLE ESQ. FOR THE RESPONDENT ae JUDGMENT DELIVERED Of THE 9 DAY OF JUNE, 2008 BY HON. MR. JUSTICE BODE RHODES-VIVOUR.

Judgment

‘The facts in this case are fortunately refreshingly clear, but only a few of the facts thereof are germane to the points in this appeal. | will not set out all the facts but will be content with such facts as are relevant for the purpose of highlighting the points in this appeal which are material to the issues in the judgment. The respondent as plaintiff, on the 3 day of June 1998 took out ‘an Originating Summons against the Appellant, as Defendant asking the High Court of Sierra Leone to determine the following:

1. That the Deed of Conveyance dated the 25" day of August, 1992 and expressed to be made between Alhaji Tejan Sowe therein referred to as the Vendor of the ‘one part and Sahr Samuel Nyandemoh and Aiah Momoh therein reforred to as yi 1

N the Purchasers of the other part conveying ALL THAT PIECE OR PARCEL OF LAND together with the Building(s) situate lying and being at No.37 Malama Thomas Street, Freetown in the Western Area of the Republic of Sierra Leone and registered as number 909/92 at Page 139 in Volume 463 in the Record Books of Conveyances kept in the Office of the Administrator-General, Roxy > building, Walpole Street, Freetown aforesaid jointly owned by the Plaintiff and the Defendant may be partitioned between them.

2. That the Deed of Partition be settled in accordance with draft to be prepared by an Independent Surveyor jointly appointed and approved by both parties.

3. Alternatively, that the aforementioned property be sold by public Auction or by Private treaty to the highest bidder at a price not below the reserve price to be set by an independent Valuer such price to be sanctioned by the Court. 4, The sale and distribution between the Plaintiff and the Defendant would be more beneficial to the parties than a division of the property between them.

5. That the Plaintiff do have the conduct of the sale and the Plaintiff and the Defendant execute the Deed of Conveyance. In default of either party signing the ‘said Deed, that the Master and Registrar do execute the same on behalf of the default party.

6. That either party be at liberty to bid at the said sale and in the event of the Plaintiff being Purchaser thereof the Deed of Conveyance to be executed by the Defendant or the Master and Registrar.

7. That an account of the rents and profits of 37, Malama Thomas Street, Freetown 2 in the Western Area of the Republic of Sierra Leone, collected or received by the Defendant as the Plaintifs Agent and payment of what shall be found due on taking such account.

25t R & That the costs of this application be borne by the Defendant, such costs be taxed. The following affidavits were filed in support of the Originating Summons:- ~ (a) Affidavit of Nasiru Deen Tejan-Cole sworn on 30/9/98

(0) Affidavit of Sahr

8. Nyandemoh sworn on 6/10/98 (c) Affidavit of Fawaz Ayoub sworn on 15/10/98 (d) Affidavit of Ola Thomas sworn on 6/11/98 (e) Affidavit of Raymond Awoonor-Renner sworn on 22/9/99 In opposing the Originating Summons the defendant relied on the following affidavits:- (a) Affidavit of Aiah Momoh sworn on 3/7/98 (b) Affidavit of Manso Dumbuya sworn on 11/7/98

(6) Affidavit of C.F. Edwards Esq. sworn on 20/10/98

(0) Affidavit of Sallieu Kamara sworn on 22/10/99. (On 22/11/99, the learned Trial Judge, The Honourable Mr. Justice A.N. Stronge heard Counsel and read all the affidavits. Thereafter this is what His Lordship had to say:- be “cessssssssssssee It iS considered that there is a dispute as to fact and that the best expeditious and economical disposal of the proceedings will accordingly best be secured by hearing the Summons partly on oral evidence with or without cross-examination of any of the deponents as the Court may direct’:

4 His Lordship then ordered as follows:-

1. That the deponents to the affidavits filed in this action do attend before the Court at a date and hour to be fixed for cross-examination thereon but the parties to be at liberty to supplement their evidence by oral evidence and

» adduce further evidence;

2. The cost of and occasioned by this application shail! be costs in the cause. Counsel complied with His Lordships orders above and on the 9" of February 2001 judgment was entered in favour of the Plaintiff as follows:

1. That property No.37, Malama Thomas Street, Freetown in the Western Area of the Republic of Sierra Leone be sold by Public Auction or by Private Treaty to the highest bidder at a price not below $250,000 (Two Hundred and Fifly Thousand United States Dollars) or its equivalent in Leones at the current Bank rate of exchange at the time of such sale, such price to be approved by the Court.

2. That Solicitors for both parties do have conduct of the said sale and the Plaintiff and Defendant execute the Deed of Conveyance to the purchaser and in default of either party signing the said Deed of Conveyance the Master and Registrar of the High Court do the same on behalf of the defaulting party.

3. That either party be at liberty to bid at the said sale and in the event that either party being the purchaser thereof the Deed of Conveyance be executed by the other party or in default by the Master and Registrar, High Court.

4. That an account of all rents and profits received by either party from the said property since the purchaser thereof be submitted by each party with liberty to

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