Aiah Momoh v Sahr S. Nyandemor (SC CIV APP 6 of 2006) [2008] SLSC 4 (9 June 2008)

8.C. CIV. APP 0/2006 ( F INTHE SUPREME COURT OF SIERRA LEONE, BETWEEN: AIAH MOMOH + APPELLANT AND ‘SAHR SAMUEL NYANDEMOH = RESPONDENT ‘CORAM: y HON. MR.JUSTICE 6.8. SEMEGA-JANNEH + JSC. HON. MR. JUSTICE BODE RHODES-VIVOUR = -—J.S.C. HON. MRS. JUSTICE

8. BASH-TAQI + 4S.C. HON, MS. JUSTICE S. KOROMA OIA HON. MR, JUSTICE S.A ADEMOSU OIA SOLICITORS/COUNSEL S.Ml. SESAY ESQ. FOR THE APPELLANT N.D. TEJAN-COLE ESQ. FOR THE RESPONDENT

ak 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 4 S8#mane 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 1 this appeal which are material to the issues in the judgment. The respondent as plaintilf, 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 deteriine the following:

1. That the Deed of Conveyance dated the 25” day of August, 1992 and expressed 10 be made between Alhaji Tejan Sowe therein referred to as the Vendor of the one part and Sahr Samuel Nyandemoh and Aich Momoh therein referred to as

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 Acminisirator-General, Roxy building, Walpole Street, Freetown aforesaid jointly owaed 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 so'd 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 defautt of either party signing the said Deed, that the Master and Registrar do execute ihe 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 in the Western Area of the Republic of Sierra Leone, collected or received by the Defendant as the Plaintiffs Agent and payment of what shall be found due on taking such account.

8 That the costs of this application bo borne by the Defendant, such costs be y taxed,

The following atfidavits were filed in support of the Originating Summons:- (a) Affidavit of Nasiru Deen Tejan-Cole sworn on 30/9/98 (b) Affidavit of Sahr

8. Nyandemoh sworn on 6/10/98 p

(6) Alfidavit of Fawaz Ayoub sworn on 15/10/98 (d) Affidavit of Ola Thomas sworn on 6/11/98

(2) 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 (c) Alfidavit of C.F. Edwards Esq. sworn on 20/10/98 (d) 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:~ “cesses It is considered that there is a dispute as to fact and that the best expecitious 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”

His Lordship then ordered as follows:-

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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 shall be costs in the cause.

i 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 Sie:ra Leone be sold by Public Auction or by Private Treaty to the highest bidder at a price not below $250,000 (Two Hundred and Fifty 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 toth parties do have conduct of the said sale and the Plaintiff and Deferdant 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 parly 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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