Alhaji F. Sawaneh v Alhaji M. Bayoh (SC CIV APP 6 of 1979) [1980] SLSC 12 (3 July 1980)

SC, Civ.App.6/79 . IN THE SUPRENE COURT OF SIERRA LEONE BETWEEN: ‘ ALHAJI FODAY SyWANEH - APPELLANT . ° AND ., ALHAJI MURRAY BAYOH ~. RESPONDENT

Coram

The Hon Mr Justice E. Livesey Luke - Chief Justice” ‘The Hon Mr Justice C. A. Hardin = Justice of The : Supreme Court . The Hon Mr Justice

0. B. R. Tejon = Justice of The Supreme Court The Hon Mrs Justi cart Ri Justice of The e justice A"Awanor-Renner Justice 6¢ Tt The Hon Mr Justice 8S. B. Davies = Justice of The Supreme Court Mr Ade Renner=Thomas for Appellant Mr 7. 8, ‘Johnson for Respondent RULING AND. JUDGMENT. QELIVERED On BRD DAY oF JULY 511980, DEJAN J,5,C,i~ By an agreement dated 6th day of February 1974 the respondent agreed to sell premises dituate and lying at 33A Kainkordu Road, Koidu Town in the Kono District of the Eastern Province of the Republic of Sierra Leone for the sum of Le8,200,00 to the appellant of Noy14 Section 11 Koidu Town in the Kono District in theEastern Province of Sierra Leone, The agreement stipulated that the respondent was to remain in possession of the said Prenises for a period of six months without payment of vent, and that the sai¢ period was to end on the 31st day 2/mage .

a a umb-printed it. The appellant then paid the agreed sum.of Le8,200,00 to the / respondent,

After the 31st day of July 1974, the respondent neither gave up possession nor conveyed the Premises to the appellent who then instituted proceedings against him dy; the issue of a Writ of Summons dated 18th day of April, 1975, claiming a decree of specific Performance of the contract of sale, vacant possession of the premises and mesne profits from the 1st dey of August 1974 to the date of giving vacant possession.

The respondent admitted in receiving the sum of Le8,200.00 but asserted that the sum of Le8,200.00 was received by him by way of a pledge or mortage on the house which was a family property. . The

Respondent, however, agreed to pay into Court the full amount of Le8,200.00.

On the 22nd day of January, 1976, the case came before Thompson-Davies J. for trial, and who after having heard the evidence and arguments on voth eides, delivered on the 13th day of July, 1977, judgment in the following terms:—

"For all these reasons I find myself unable to grant the relief sought by the _ plaintiff, The plaintiff is entitled

to have his money, since to my mind

exhibit "A" seems spurious and incémplete.

I cannot find my way clear to award

Blmeenee

3. oy eny damages, While refusing the Plaintiff's request for specific performance I would order that the defendant do refund the sum of Le8,200.00 to the plaintiff and that he pay the costs of this action. Such costs to be taxed."

In support of his conclusion, he relied on the passage in Halsbury Laws of England 3rd Edition Vol. 36 paragraph 359 ati page 263 which reads thus:-

“The remedy of specific performance is thus

in contrast with the remedy by way of

damages for breach of contract, whieh

gives pecuniary compensation for failure

to carry out the terms of the contract.

‘The remedy is special and extrsordinary in

its character and the Court has a dise

cretion to grant it, or to leave the

parties to their rights et law. ‘The

discretion is however not an arbitrary

or capricious discretion; it is a dis-

cretion to be exercised on fixed principles

in accordance with the previous authorities,

‘The Judge must exercise his discretion

in a judicial manner, If the contract

is valid in form and has been made be-

tween competent parties ond is unobjection-

able in its nature and circumstances,

specific performance is in effect granted

as a matter of course, even though the

judge may think it involves hardship." Rfas sacs

4 ae The Trisl Judge referzed to paragraph 389:

“Where it is sought to enforce specific

Performance of a contract, the Court mst

be satisfied.

(4) ‘That there is a concluded gontract in fact;

(2) that the contract so concluded is not incomplete’by reason that the parties have failed to agree expressly or by implication on some essential matter,

. or by reason that if fails to comply with statutory requirements relating to contractas

(3) that the contract is precise and certain or in other words, thatalthough all essential matters may have been dealth with, there is not euch uncertainty and vagueness that exact performance cannot be ordered."

_ Im the course of his Judgnent,, the Learned rial Judge seid:

"Now the contract relied on by the

plaintiff is contained in Exhibit "A"

which withont doubt speaks against the

Z1literates Protection Act Cep. 104 Laws

of Sierra leone! that being so it is not

suffiedent to transfer any interest in

land. Taking a closer look at the said

document it seems to.me that it was

never signed by the defendant, thot ie

the party to be charged, or his agent} Fy,

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