Alhaji A. Sesay v Emad Bahsoon (SC CIV APP 6 of 2005) [2010] SLSC 10 (12 February 2010)

ai ~ SC. CIV.APP NO. 6/2005 : : IN THE SUPREME COURT OF SIERRA LEONE BETWEEN: : ALHAJI ABDULAI SESAY - APPELLANT AND EMAD BAHSOON - RESPONDENT

Coram

THE HON. MRS. JUSTICE S, BASH-TAQI - 3.8.c. THE HON. MRS. JUSTICE V.A.D, WRIGHT ~ J3S.C, THE HON. MR. JUSTICE G.B. SEMEGA-JANNEH ~ JS.C. THE HON. MR. JUSTICE N.c. BROWNE-MARKE - J.A, THE HON. MR. JUSTICE FE. ROBERTS - AL COUNSEL: E.E.C. SHEARS-MOSES ESQ. AND MS. M.A.P. DAVIES FOR THE APPELLANT R. JOHNSON ESQ. FOR THE RESPONDENT JUDGEMENT DELIVERED ON THE 12™ DAY OF FEBRUARY 2010 sx -use Alhaji Abdulai Sesay (Appellant herein and Plaintiff at the trial Court) and Emad Bahsoon (Respondent herein and Defendant at the trial Court) knew + each other as employer and builder since about 1984. The relationship apparently blossomed into a friendship well before the dispute arose between them. Mr. Bahsoon did construction work for Mr. Sesay at various places in Freetown, including No. 24 Siaka Stevens Street, and also in Sefadu, kono,

: where he lived in the premises of Mr. Sesay. Mr. Bahsoon at some stage even ‘ managed Mr. Sesay's Cinema house, “Roxy’, in Freetown. In about 1990, Mr. Bahsoon came to live at the premises in Bolling Street, cecupying the 1* floor (ground floot) of the storey building. A sale agreement (Exhibit A) dated the 15% December, 1990, was entered into by Mr. Sesay and * Mr. Bahsoon for the sale of property at Bolling Street, by Mr. Sesay to Mr. Bahsoon, The agreement was prepared by Ibrahim B. Kamara (PW2), a lay Person. It was agreed that the sale transaction should be completed within three years as at the date of the agreement, that is, in 1993. Completion did not materialize in 1993. In 1998, after demanding execution of the conveyance of 4, Bolling Street, Freetown, prepared by his solicitors, without success, Mr. Bahsoon caused a writ to issue, claiming:

1. Specific performance of the said agreement,

2. Damages for breach of contract, Mr. Sesay counter-claimed for possession and mesne profits at the rate of US $ 1000 per month until possession is yielded up or damages for trespass. On the 19% March, 2002, the trial Judge gave judgement for specific performance and dismissed the counter-claim of Mr. Sesay. As a result, Mr. Sesay appealed to the Court of Appeal against the decision of the trial Judge. The Court of Appeal, in its judgement dated the 30% day of November, 2004, upheld the judgement of the trial Court and, accordingly, dismissed the appeal. It ia against this Judgement of the Court of Appeal that Mr. Sesay appealed to this Court on six grounds of appeal, namely: :

1. That the learned Justices ignored the conduct of the Respondent in affirming the judgement which ordered specific performance of the * agreement. '

2. That the learned Justice did not avert their minds to the evidence that possession of the property by the Respondent was not ce? 3 2

3th consequent upon the purported agreement but prior to it, before x affirming the order for specific performance.

3. The learned Justices did not avert their minds to the identity of the Portion of property involved in the purported agreement having recourse to.the evidence. , 4 The learned Justices failed to ignore the conduct of the Respondent in preparing a plan without the approval and knowledge of the Appellant who would demarcale the boundaries.

5. The leamed Justices wrongly took the delay by the Appellant in canceling the agreement as acquiescence to the breach by the Respondent < 6 The leamed Justices failed to consider the validity of the purported receipts tendered by the Respondent. In its judgement dated the 30% day of November 2004, the Court of Appeal only dealt with the first ground of appeal which is that the decision of the trial Court is against the weight of the evidence having dismissed ground two, which is based on misapplication of the principles of law, on technical grounds. In dealing with ground one, the Court of Appeal proceeded to evaluate some aspects of the evidence and making some findings of fact in support of the trial Court’s decision before deferring to its judgement, even though, the Court of Appeal was not oblivious to the submission of counsel for Mr. Sesay that the witnesses for Mr. Bahsoon were not truthful. In my view, the trial Court, unlike the Court of Appeal, did not evaluate the

Evidence

The trial Court, after setting out the pleadings (from Pages 70 to 72, inclusive, of the record), proceeded to recount (or narrate) the evidence (from + Pages 72 to 89, inclusive, of the record) and then plunged directly into dealing with the law and what she considered the legal issues of the case (from pages 86 to 96, inclusive, of the record) before finding for Mr. Bahsoon; and, consequently, ordered Mr. Sesay to: sign the conveyance Prepared by Mr. r 3

: Bahsoon’s solicitors. What I consider to be an exception to the lack of findings x of fact is the trial Court's view, that, and I quote: “The defendant (Mr. Sesay) feigned not to be aware of the claim of government. In contrast to this there is Exhibit “F" which was written by PW2 (Ibrahim B. Kamara) to the Department of Surveys and Lands and it was at the instance of the Defendant. I had the - opportunity t0 watch the demeanor of the witnesses both of the Plaintiff, Pw2 and the Defendant and I am satisfied the Defendant was aware of the stalemate” However, this finding of fact has no basis on the evidence; Mr. Sesay never denied or pretended that certain government officials were claiming that his landed property at kingtom, Freetown, belonged to the state. He was absolutely certain that the claim was misguided and erroneous and took successful steps to correct the view. . The trial Court dealt briefly with the counterclaim (from Pages 96 to 97, inclusive, of the record) and, surprisingly, in contrast to its treatment of the claim, made some findings of fact, that is, firstly, that Mr, Sesay at some point in time was the fee simple owner of property numbered 4 Bolling street, Kingtom, and that sometime later he disposed of a portion to the government and by exhibit A (the sale agreement) he agreed to sell the remaining portion to Mr. Bahsoon; and, secondly, that it was agreed that Mr. Sesay took Possession and occupation on a concluded agreement evidenced by exhibit A. Part of the first finding was never in dispute. What is in dispute is what portion or area of land Mr. Sesay agreed to sell and Mr. Bahsoon agreed to buy. As regards the ‘second finding, there is no evidence that the Parties agreed that Mr. Bahsoon took possession and occupation, not to ‘speak doing so on the basis of Exhibit A. On the contrary, there is a sharp contention whether Mr. Bahsoon came to > live in Bolling Street before the making of the sale agreement (Exhibit A) or after on the basis of the agreement; and, also, whether at the time Mr. Bahsoon came to live there, Mr. Sesay and his family were living there. x 4

The pages read for this report end here. The judgment continues in the PDF.