Alimamy Sesay v Madam Kamara (Civ App 64/2017) [2022] SLCA 17 (20 October 2022)

CIV. APP. 64/2017 AND CIV. APP. 21/2018 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: CIV. APP 64/2017 ALIMAMY IBRAHIM SESAY —- APPELLANTS. AND MADAM YABOMWARA KAMARA ~ RESPONDENT BETWEEN CIV. APP. 21/2018 MADAM YABOMWARA KAMARA - APPELLANT AND IBRAHIM SESAY ' - RESPONDENT

Coram

HON. MRS. JUSTICE JAMESINA E. L. KING J.A (PRESIDING) HON. MR. JUSTICE ANSUMANA |. SESAYJ.A HON. MR. SULAIMAN A. BAH J.A. COUNSEL: G. Conteh Esq. for Alimamy Ibrahim Sesay Appellant/Respondent S.M. Sesay Esq for Madam Yabomwara Kamara Respondent/Appellant JUDGMENT DELIVERED THIS 20™ DAY OF OCTOBER 2022 Civ. App 64/2017 In this matter there are two appeals. In Civ. App. 64/2017 the Appellants are ‘Alimamy Ibrahim Sesay and Yabom Posseh Sesay and the Respondent is Madam Yabomwara Kamara. The Notice of Appeal is at page 395 -396 of the records. This Appeal is against the whole of the Judgment of Justice Komba K. Kamanda

J. (as he then was) dated 11 August 2017 and the grounds of appeal are as follows: -

1. That the Learned Trial Judge acted on the wrong principles of law in refusing the application for a stay of the Judgment in Default by the Defendants.

2. That the Learned Trial Judge failed to consider the ownership of the property as against the Plaintiff and the Freetown City Council, Lessor to the Defendants.

3. That the refusal of the Order sought by the Defendants is against the weight of the affidavit evidence.

The relief sought is for the Order dated 11" August, 2017 to be set aside. The

order of 11" August 2017 refused the application for a stay of execution of

the Judgment dated 24" April 2017 and for leave to file a defence out of time. The second appeal — Civ. App. 21/2018 The second appeal is Civ. App 21/2018 and the Amended Notice of Appeal is at page 434 — 438 of the records of appeal dated 19" October 2018 after an order to amend of 18" October 2018. The Appellant is Madam Yabomwara Kamara and the Respondent is Ibrahim Sesay. This appeal is against the whole of the Judgment of Hon. Mrs. Justice Adelaide

0. Dworzak J. dated 14 March 2018 and the grounds of appeal are as follows:

1. The Learned Trial Judge failed to consider adequately or at all the Appellant's Affidavit in Opposition to the Purported Application that was before her.

2. That the issues raised in the Respondent's undated Application of 2018 had been litigated upon by a Court of Competent Jurisdiction between the same parties in a matter that was before the same High Court intitled C.C, 7/17 K No.

1. Between Madam Yabomwara Kamara — Plaintiff and Ibrahim Sesay — Defendant.

3. That the issues adjudicated upon in the Respondent’s action that was before the Trial Judge the Hon. Mrs. Justice Adelaide

0. Dworzak judge were res judicata.

4, That the procedure adopted by the Respondent to relitigate issues that had been litigated upon between the same parties by a court of competent jurisdiction was wrong in law.

5. That the Purported Originating Summons in the matter leading up to the Judgment of 24" March 2018 was never issued as the same was not sealed with the seal of the High Court as required by law nor was it ever an Originating Summons according to law.

6. That the Learned Trial Judge erred in law in holding that the Land the subject matter of a previous judgment of the High Court in the matter intitled C.C. 7/17 K No.

1. Between Madam Yabomwara Kamara — Plaintiff and Ibrahim Sesay — Defendant leading to the Judgment of the Hon. Mr. Justice Alhaji Momoh Jah Stevens, the same dated 24" April 2017 [is] separate and distinct from the land delineated on Survey Plan numbered LS5841/14 dated 9" May 2015 based on the evidence of the Respondent's Surveyor only.

7. The Learned Trial Judge proceeded on the wrong procedure in adjudicating on an action for title to land and thereby erred in law in holding that the execution done for the Respondent pursuant to the Judgment of the High Court dated 24" April 2017 in respect of the same res in this matter was wrongful

8. The Learned Trial Judge proceeded to assess damages in the matter that was before her when there was not sufficient evidence before her to do so.

9. The Learned Trial Judge proceeded to determine this matter without allowing the Appellant to put her case before the Court in breach of a fundamental principle of natural justice to wit:- audi altarem partem.

10.That the Judgment dated 14 day of March 2018 cannot be supported having regard to the evidence that was before the Court.

11.That the Respondent ought not to have the issues relitigated by the same High Court of concurrent jurisdiction having regard to the Judgment of 24" April 2017 in the manner before the same High Court.

The reliefs sought by the Appellant Madam Yabomwara Kamara from this

Court are:

1. That the Judgment of the Hon. Mrs. Justice Adelaide

0. Dworzak J. dated 14 March 2018 be set aside and the Appellant appeal upheld and Judgment entered for the Appellant in this Appeal.

2. That this Honourable Court do make an Order that the Appellant be restored into possession of all that piece or parcel of land situate lying and being at New Freetown Waterloo Road Freetown, the same as

demarcated on Survey Plan Numbered LOA 2116 dated 19 day of January 2002. Alternatively

3. This Honourable Court do make an Order directed at the Undersheriff to restore the Appellant into possession of her said land situate at New Freetown Waterloo Road Freetown.

Background

Civ. App. 64/2017 This appeal emanated from a judgment in respect of a Writ of Summons C.C. 7/17 instituted by Madam Yabomwara Kamara dated 12" January 2017 in which she prayed for a declaration, against Ibrahim Sesay and Yabom Posseh jointly and severally for a declaration of title for all that the piece or parcel of land situate lying and being at Freetown Waterloo Road, Freetown, as per Conveyance registered as Volume 551 page 117 No. 340/2002, shown in Survey Plan SLS No. 38/90 dated 8" January 2002 and other related reliefs. In her particulars she stated that she is the fee simple owner and that the 1* and 2° Defendants, Ibrahim Sesay and Yabom Posseh, continued to trespass and commits acts inconsistent with the fee simple and despite warnings they have continued to trespass and occupy the land. She obtained judgment in default on a motion for Judgment on 24" April 2017, {at pages 356 — 358) delivered by Hon. Mr. Justice Alhaji Momoh Jah Stevens J. (as he then was), declaring her as the fee simple owner of 93 Bai Bureh Road Kissy, Freetown measuring an area 0.105 acre on survey plan dated 8" January 2002 between the Government of Sierra Leone and herself registered as No.240/2002 at page 117 Volume 551 of the Book of Voluntary Conveyances kept in the Office of the Registrar-General in Freetown. The said Judgment was subsequently duly executed This appeal, Civ. App. 64/17 is by the Appellant Ibrahim Sesay against the refusal by Hon Justice Komba Kamanda J. (as he then was) to grant a stay of execution the said Judgment of 24" April 2017 by Justice Stevens and for a defence to be filed out of time. There are two similar Motions for setting aside the Judgment dated 20" July 2017 and 1 November 2017 filed by C.F. Edwards Esq and Betts & Berewa respectively. There is also a previous Writ C.C. 275/16 between Madam Yabomwara Kamara as Plaintiff and Alimamy Ibrahim Sesay and Yabom Posseh Sesay as Defendants,

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