Augusta Kaimuna v Jlah Brodeh Grant (3 of 87) [2002] SLSC 2 (4 December 2002)

CIV. APP, 3/87 (16 ar) INTHE SUPREME COURT OF _SYERRA Leone EE COURT OF _STERRA LEONE CO KR A M 4 HON. MR. JUSTICE s.\ BECCIES DAVIES = ose HON. MRS. A. AWUNOR-RENNER - o86 HON. MR, JUSTICE S.C.B.WARNE > 389 < HON. MR. JUSTICE M. O. ADOPHY. ‘ - oh - HON. MR. JUSTICE A.B. TIMBO ~The BETWEEN: ~ AUGUSTA KATHUNA > APPELLANT AND JLAH BRODER GRANT + 1s? RESPONDENT AND : MR. ADAMA . > 2ND. RESPONDEN? Ee 2 ; "DR. W.S. MARCUS—JONES FoR APPELLANT =, : G. S. WILLIAMS ESQ., FOR DEFENDANTS - JUDGMENT DELIVERED THIS oe DAY OF £4, ads 2002 MARNE Je5.Ce This is an Appeal against the Judguent of the Court of Appeal, saade up of NAVO, TURAY AND WILLIAMS JJA. delivered on Thursday 22nd: day of January, 1987 THE GROUNDS OF APPEAL: aR, as 3 Ook oe ee SE GROUNDS OP APPEAL: AREt. ; 1+ The Court of Appeal misdirected itself in law by failing to appreciate the “Order to’ recaver POBSession: of. 13, Nana: Krog’ -. Street Freetown meant and coutd only. be reasonably interpreted .- to mean a0 mich of 13 Wand Rroa strest’ RS Vie in the actual’ Possession or occupation of the Secoiid Defendant, « tenant in the said premises ond by construing that order to mean recovering "more relief" than vas claimed. 2s The Court of Appeal erred in Law in not making ai Order dismissing the Counterclaim. ;

Facts

The facts of the case are that’ appellant is the owner és . of and in possession and control of property No 13 Nans Kroo “treet This property she let to three tenants, Thess tenanis paid rent to her until one of the tenant; defaulted whom she evicted. This tenant ave-James Levis vacated the room and put in possession the 1st Respondent. ‘The 1st Respondent vacated ¢ the room and put in possession, the 2nd Reepondent. The Appellant Sought to remove the 2nd Respondent but the 1st Respondent SP s0r/Resssscee

ar aa ee (1+ opposed her action, Both Respondents were then sued in the High Court for the Possession of the room. i On the 14th October 1982, the High Court gave Judgment in favour of Appellant granting her the reliefs cought. In the proceedings in the High Court, four witnesses testified for Appellant and five witnesses testified for the Defendants. At the end of the teatimony both si Counsel addressed the Court. Johnson Jy reviewed the evidence for the Appellant and for the Respondents ‘and had this to say- "I accepted the whole evidence of the Plaintiff and her witnesses. I do not believe or accept the evidence of the 1st Defendant and that of the witnesses for the Defendant. JI find as a fact, that Abigail samson was in possession of premises 13, Nana Kroo Street and that she ‘validly disposed of the premiies to the Plaintiff, in cordance with Kroo Customary Law. In this regard, I accept the evidence of P.w.

4. I do not find P.W. 4 to be an interested party. I find that Abigail samson has a better right to possession of presises 13, Nana Kroo Street, I do not accept the evidence that the 1st Defendants father was the owner of the premises. I find that the Plaintiff in all the circumstances, has a better right to possession of the premises than the 1st Defendant herein,” Tt is an established principle of law that an Appellate court vill not readily disturb the findings of facts of the Trial court, but where the facts do not support the findings of the Trial court or the findings have violently contravened a Rrinciple of law, or the findings are contrary to the facta or the facts have not been evaluated, the Appellate Court can interfere with such findings of facts,

In my view, the Trial Judge did not evaluate the facts adequately before making his findings. To compound the flaw in the findings the Trial Judge did not consider the Counterclaim to enable him make any findings whatsoever.

In any case the Court of Appeal has a right of rehearing the whole case which they did.

. In fairness to Counsel for Appellant he gave sever~1 reasons why the Appeal should succeed. I will repeat them, ™(1) Because the Second Respondent was a tenant having no beneficial interest in the premises and led no evidence in defence of the . claim against him.

(2) Because the High Court was right in finding that the Appellant

es. e (18 had a better right to possession of the premises thar the let Respondent. . @) Because the Appellant was not merely ower in accordance with Kroo Customary Law but vas at all material times in Undisturbed possession of the premises.

(4) Because the tat Respondent failed to establish her right to 4 @ Declaration of Title, damages and an injunction.

(5) Because at no time was the property vested in the 1st Respon= nor was she ever in possession of the anne.

(6) Because on the totality of the evidence the Judgment of the High Court was correct and ought to be upheld and the Court of Appeal was one sided in reversing it." ‘

Having said thie I will consider the proceedings in the Court of Appeal

Both parties were represented im the Court of Appeal and made their subwissions. ; :

The Court of Appeal having heaid the cubmissions had this to sey: "her claim was for recovery of possession of only a portion of the said Premises, yet the Court Below ordered that the Respondent "do recover poasésaton of 13, Nena Kroo Street, Freetown from the Second Defendant".

Tis Court found to be Contrary to Law. On a closer oxamination of the evidence and on a proper evaluation the court found that the Property the Appellant was claiming was clearly, defined and there was no. decumontecy, to” “ substantiate her claim. On the evidence before the court, there is evidence

that the Respondent acquired the Property, by Kroo custowary Law. The Trial Judge accepted the evidence on Krog Customary Law as evidence of fact. But the Court of Appeal has referred to Kroo Customary Law as a question of Law. The Court of Appeal referred tap. 127 Laws of Sierra Leone and determined that the property ip fiispute is within the Kroo Reservation Area as defined in Cap. 127, In deteradmg the acquisition of 13 Nana Kroo street by the Appellant, The Court of Appeal found that “the offect of the Kroo Reservation (chapter 127) is not to make Kroo Lavs and Customs prevail over the General “oumon Low except in the specified case of succession on Intestary spelt out in Rule 2 Schedule B of Kroo Reservation Act to be found at Page 942 ? Volume vii of the Laws of Sierra Leone”. I agree with the finding of the Court of Appeal, The Court of Appeal also found that the disposal of the proverty No. 13 Nana Kroo Street by Abigail Sampson is not valid according to Taw. I find no fault with cuch finding. she had neither prescriptive right to dispose of the property nor legal or equitable right.

- Ks | | 4 So deh ’ It is unfortunate that this case has dragged on for owennb Seale. The Learned Trial Judge did not make any finding on the Counterclaim not— . did the Court of Appeal make a finding as well. What im the option open to this Court?. In my view it is to remit the Counterclaim to the High Court for rehearing, However, what purpose will that serve. It is the duty of the Court to ensure that justice is ‘done to litigants who come to : our Courts. Since this Court can make any order vested in the High Court, I will proceed to review the case for the Respondents more particularly thi of the 1st Respondent. I have reviewed the whole evidence carefully and T hold that on a balance of probality the 1st Responient has failed to establish that she is the owner of property No. 13 Nana Kroo Street, Freeto T will dieaise the Counterclaim ond I grant liberty to apply. In view of what I have said supra I hold that there is no aerit in Ground I of the Grounds of Appeal and it is diamissed and Ground II of the Grounds of Appeal succeeds. No costs awarded, gas SNe ee SUSTICE OF THE SUPREME COURT