Alhaji A. Sesay v Emad Bahsoon (SC CIV APP 6 of 2005) [2010] SLSC 14 (12 February 2010)

go, CIVAPP NO. 6/2005 50 EN: sprwe 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 - JS.c. THE HON. MR. JUSTICE G.B, SEMEGAJANNEH - J.S.C. THE HON. MR. JUSTICE N.C. BROWNE-MARKE - J.A. THE HON. MR. JUSTICE E. ROBERTS - JA COUNSEL: E.L.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 Se -usc ‘thajt Abdulai Sesay (Appellant herein and Plaintiff at the trial Court) and mad Bahsoon (Respondent herein and Defendant at the tial Court) knew (Resp “sh other as employer and builder since about 1984. The relationship | “Peerently blossomed into a friendship well before the dispute arose between = Mr. Bahsoon did construction work for Mr. Sesay at various places in \ “stown, including No. 24 Siaka Stevens Street, and also in Sefadu, kono,

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gee BE lived in on bees Of Mr. Sesay. Mr. Bahsoon a stage even “nee! Mr. Sesay’s Cinema house, *Roxy*, in Freetown pout 1990, Mr. Bahsoon came to live at the premises in Bolling Street. qcupying the 1s Nloor (ground flooi) of the storey building. A sale agreement siti dated the 15% December, 1990, was entered into by Mr. Sesay and yy. Bahsoon for the sale of property at Bolling Street, by Mr. Sesay to Me uhsoon. The agreement was prepared by Ibrahim B, Kamara (PW2). 2 lay eon. It was agreed that the sale transaction should be completed within thee years as at the date of the agreement, that is, in 1993. Completion did ot materialize in 1993. In 1998, after demanding execution of the conveyance ef 4, Bolling Street, Frectown, prepared by his solicitors, without success, Mr. puhsoon caused a writ to issue, claiming:

1. Specific performance of the said agreement.

2. Damages for breach of contract.

| ue 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 194 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 ‘he Court of Appeal against the decision of the trial Judge. The Court of Appeal, hnits judgement dated the 30 day of November, 2004, upheld the judgement the trial Court and, accordingly, dismissed the appeal. It is against this

, Mgement of the Court of Appeal that Mr. Sesay appealed to this Court on six

* Pounds 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.

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2. That the learned Justices did not avert their minds to the evidence t that possession of the property by the Respondent was not!

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ae consequent upon the affirming the ante for eaters Agreement but pricr to i, defure 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 leamed 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 boundary

5, The leamed Justices wrongly took the delay by the Appellant in canceling the agreement as acquiescence to the breack by the Respondent

6 The learned Justices failed to consider the validity of the purported receipts tendered by the Respondent.

Inits 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 tased on misapplication of the principles of law, on technical grounds. In dating 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 Cout's decision before deferring to its judgement, even though, the Court of types! was not oblivious to the submission of counsel for Mr. Sesay that the Witnesses for Mr. Bahsoon were not truthful. ‘a my view, the trial Court, unlike the Court of Appeal, did not evaluate the idence. The trial Court, after setting out the pleadings (from pages 70 to 72, indusive, of the record), procceded to recount (°F narrate) the evidence (from tts 72 to 89, inclusive, of the record) and then plunged directly into dealing ‘ith the law and what she considered the legal issues of the case (from pages % 10 96, inclusive, of the record) before finding for Mr. Bahsoon; and, Sreequently, ordered Mr. Sesay to: sign the conveyance Prepared by Mr.

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P 4s Bahsoon’s solittnrs, What I consider to be an exception to the lack of findings of fact is the trial Court's view, that, and I quote:

{ The defendant (itr. Sesay) feigned not to be aware of the claim of t 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 to. 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 | tocorrect the view. é 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 | aim, 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 aureed that va Balwoon took possession and occupation, not to speak doing 80 ‘on the basis of Exhibit there is a sharp contention whether Mr. Bahsoon came to Cait cone vam of the sale agreement (Exhibit A) or live in Bolling Street before the making ©! " . ats dnd, also, whether atthe time Mr, Bahsoon after on the basis of the agreements * ay were living there. came to live there, Mr. Sesay and his family Wo

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