Alhaji Mohamed Barrie v Francis Musa Kutubu (CIV APP 40 of 2009) [2015] SLCA 1120 (15 March 2015)

‘e-'s-cIV APP 40/2009 t IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: ‘ALHAJI MOHAMED BARRIE - APPELLANT

AND

FRANCIS MUSA KUTUBU - RESPONDENT

COUNSEL:

ND TEJAN-COLE ESQ for the Appellant

JB JENKINS-JOHNSTON ESQ for the Respondent

Coram

THE HONOURABLE MR JUSTICE N C BROWNE-MARKE

JUSTICE OF THE SUPREME COURT

‘THE HONOURABLE MS JUSTICE V M SOLOMON

JUSTICE OF THE SUPREME COURT

THE HONOURABLE MR JUSTICE A S FOFANAH, JUSTICE OF APPEAL

JUDGMENT DELIVERED THE 3157 DAY OF MARCH,2015. * THE APPEAL :

1, This is an appeal brought by the Appellant, Alhaji Barrie, by way of Notice of Appeal dated 9 November 2009, against a Judgment of SHOWERS,JA dated 13 October 2009,

2, The Grounds of Appeal are as follows:

(1) The Learned Trial Judge erred in law to apply:

(@) English statutes not applicable in Sierra Leone;

(©) English statutes that are not of general application in England on 1" January,1880; and

(©) English statutes that have not been adopted under the Imperial Statutes (Law of Property) Adoption Act, Chapter 18 of the Laws of Sierra Leone,1960.

(2) The Learned Trial Judge was wrong in law to hold that exhibit D the assent to the Plaintiff's beneficiaries was not in the form stated in Volume 17 Halsbury’s Laws of England 4"* Edition paragraph 1350 under the rubric "Form of Assent”, Assent can be expressly or by implication. In this regard the trial Judge has

eh applied the English Administration of Estates Act.1925 not ‘applicable in Sierra Leone.

(3) Until an Assent is made, a beneficiary has an inchoate right transmissible to the Personcl Representatives. However, executors by assenting expressly or by implication, cease to hold property as executors and in the present case since the executors were ‘appointed also trustees they hold property as trustees but collectively as trustees (sic) or individually, they were precluded from making title as executors or executor. Consequently, they or ‘one with someone else cannot convey legal estate to Francis Musa Kutubu, the Defendant,

(4) Executor(s) cannot sell, transfer or dispose of realty without ‘taking probate. However, when appointed as executors and trustees they have power to sell, transfer and dispose of realty in their capacity as trustees.

(©) The Learned Trial Judge was obliged to give reason(s) why she rejected the testimonies of Momoh Kanu, Hassan Kanu, Monday Kanu, Alimamy Farama and Ezekiel Sitta Bangura,

.

(6) The verdict is against the weight of the evidence.

3. The Notice of Appeal can be found at pages 359 &360 of the Record, Henceforth, all references to page numbers shall be taken as references ‘to pages in the Record.

4, We note that this appeal was brought by just one Appellant, who was, it appears, the 1" Plaintiff in the action tried in the Court below. The other Plaintiffs, so-called, have not appealed against the said Judgment. This brings us firstly, to the question of how the other three persons became Plaintiffs.

The Writ of Summons

5. The Appellant began the proceedings in the Court below by way of writ of ‘summons issued on 14 October 2005. His claim was for a Declaration of title to land described and delineated in survey plan, LS1875/05 dated 28 ‘September 2005 drawn and attached to Deed of Conveyance dated 6 ‘October,2005 and duly registered as No. 1853/2005 at page 61 in volume 1591 of the Record Books of Conveyances kept in the of ice of the Registrar-General, Freetown. After he had bought this piece of land from ‘the owners thereof, he appointed one of them to the position of caretaker of the land as he was going out of the country. On his return, he found out that the Defendant had, in the interim, brought ejectment

a

Buy

proceedings against the caretaker. The Magistrate's Court in which the ejectment proceedings had been brought, proceeded to Order the eviction of the caretaker and the other occupants, from the land, He therefore prayed in his writ, for the cancellation of the any deed ‘conferring title to the property, on the Defendant.

Appearance Entered

6. Appearance was entered for the Defendant by the then firm of Roberts & Partners on 20 October 2005 and Notice of the same was given to Plaintiff's Solicitors the same day.

Defence Filed

7. That same day, 20 October,2005 the Defendant filed his defence. He averred that he was the true owner of the property in dispute, having bought it from the so-called 2%, 3° and 4th Plaintiffs. His deed of conveyance from them was dated 24 May,2005 and was duly registered as No, 953/05 at page 63 in volume 588 of the Record Books of Conveyances. It enclosed survey plan LS350/05 dated 7 April,2005. The 2° 4! Plaintiff, (at the time not yet parties to the action), had consented to the sale of the property to him. After he had bought the party, the 2 and 4" Plaintiffs had left the premises; 3° Plaintiff was left there to ensure that all the tenants vacated the same, He later had ‘to bring the eviction proceedings in the Magistrate's Court against 3°¢ Plaintiff and the other tenants, because they had refused to give him vacant possession.

‘APPELLANT'S APPLICATION FOR AN INJUNCTION

8, The Appellant applied to the Court below, for an Interim Injunction, restraining the Respondent from carrying out any construction work on ‘the land. On 19 October 2005, the day before appearance was entered for the Respondent, MASSALLAY,J Granted the Injunction ex parte, On 21 October,2005 the Appellant entered the action for trial and gave notice of the same to Respondent's then Solicitors, the same day.

9. By Notice of Motion dated 24 October 2005 the Respondent applied to ‘the Court below, for, inter alia, an Order discharging the Interim Injunction granted. On 27 October, 2005 MASSALLAY, J vacated his Order of 19 October, 2005 and adjourned to 31 October,2005 for an inter partes hearing. On 1 November 2005, MASSALLAY, J Granted the

btu Appellant an Interlocutory Injunction - pages 89, 220 &

221. On7™ November, 2005, the Appellant began testifying before MASSALLAY.J - pages 221 - 222

MASSALLAY, J RECUSES HIMSELF

10. At page 223, it appears that MASSALLAY.J recused himself from the trial, The entry for 29" November 2005, so far as it is legible, reads as follows: *Case called: The Defendant and Counsel Mr M S Turay present.

The plaintiff and his counsel Mr Amadu Koroma absent. This matter stands adjourned to 2/12/05 to.....the actions of the Chief Justice with respect of (sic) the request for @ ......0r of this action to another judge ‘asa serious allegation has been made....with me (sic) by the plaintiff ‘The case file was then assigned to SHOWERS, J.

PROCEEDINGS BEFORE SHOWERS,J

11, On 16 December 2005, SHOWERS, J gave certain limited Directions for the future conduct of the action, and adjourned the hearing to 18 ‘Tanwary 2006 - page 224,

12, But before the adjourned hearing date, by Notice of Motion dated 20 December,2005 the Appellant applied to the Court below for the Respondent to be Committed for Contempt of that Court’s Order dated 19 October,2005 even though that Order stood vacated as of 27 October,2005 and had been replaced by an Interlocutory Order as of 1 November,2005. The Application was later abandoned by the Appellant. By Notice of Motion dated 3 January,2006, he applied once more to the Court below for a Writ of Attachment and a Warrant of Arrest to issue against the Respondent for breach of the respective Orders of 19 ‘October and 1 November 2005. That Motion, we are told at page 168 - (paragraph 19 of Appellant's affidavit of 10" May,2006) - by Mr Koroma, was later adjourned sine die after on oral undertaking had been given by the late Mr Turay that the Respondent would refrain from doing any work ‘on the land until the action was disposed of . This is not clear on a perusal of the minutes of SHOWERS,J for 6 January,2006 at page

225. There, ‘Me Koroma is recorded as saying: “I do not wish to proceed with the earlier one filed on 20" December, 2005..."The Learned Trial Judge ‘warded Costs in the sum of Le10,000 against the Appellant, but the earlier Motion was not actually determined, nor was it struck out that day, The Learned Trial Judge also recorded on the same page that a locus

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