Augustine A.Luseni & Family v Momodu Yillah (CIV APP 17 of 2015) [2020] SLCA 29 (12 March 2020)

CIV.APP.17/2015, IN THE COURT OF APPEAL OF SIERRA LEONE Bs BETWEEN: AUGUSTINE A. LUSENI AND FAMILY - APPELLANTS BO AND DR. MOMODU YILLAH - RESPONDENT BO oe =

Coram

HON. JUSTICE ALUSINE SESAY - JSC PRESIDING HON. JUSTICE MIATTA M. SAMBA - JA HON. JUSTICE KOMBA KAMANDA sy Counsel: J.M.JENGO ESQ FOR THE PETITIONERS/APPELLANTS 1S, YILLAH ESQ FOR THE RESPONDENT JUDGMENT DELIVERED ON THE 12°" DAY OF MARCH 2020

1. This is an appeal against the Judgment of the Honourable Mr. Justice D.B Edwards, J as he then was, sitting in the High Court in Bo delivered on the 12 day of March 2015.

2. The Petitioners /Appeliants being dissatisfied with the said Judgment appealed to the Court of Appeal on the following grounds as outlined at page 414 of the Records of Appeal i. The Presiding Judge erred in fact an in law by tailing to take into consideration the Plaintiff's case in its entirety and as such reached wrong conclusions with regard the Petitioners’ claim of ownership of the land in dispute, ji, ‘The Presiding Judge completely ignored the evidence that all the purported usufruict owners in Exhibit S, the Title Deed of the Respondent herein, had all died before the said Exhibit § was executed and thus Feached an erroneous conclusion with regards the legal effect of the said Exhibit S, one which would have considerably been different had he taken that fact into consideration iil, That the Customary Law Officer erred in fact when he discountenanced or failed to take into consideration evidence of key witnesses of the Petitioner and thus reached an erroneous conclusion in the matter, one . which would not have been reached had he carefully considered the evidence in its entirety iv. The decision s not supported by the weight of the evidence. ‘The Appellants are seeking a reversal ofthe Judgment of the Presiliny, uy the How, Mr. Justice D.B Edwards, | as he then was dated the 12 day of . March 2015 and that in its stead, this Honourable Court grants jussneut

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in favour of the Petitioners herein and that the cost of the appeal be borne by the Respondent herein including any further retief that this Coure may deem fit 2 Background 3. n 2010, this matter commenced at the Local Court of Tikonko Chiefdom in the Southern Province by the Petitioners claiming ownership of the land, the subject matter of the appeal. By Notice of Motion dated the 13% day of August 2010, this matter was transferred to the District Appeal Court in Bo and on the 6t day of March 2012 the Presiding Magistrate of the District Appeals Court, AS Fidawi ~~ gave a decision in the matter in favour of the Respondent. The Petitioners, being dissatisfied with the said decision appealed to the Local Appeals Division of the High Court in Bo by way of a Petition dated the 10% day of April 2010. The Appeal was heard before the late Justice DG Thompson, J, who on the 17% day of, May 2013 allowed. the appeal and set aside the Judgment of the District Appeals ? Court.

4. The Respondent however being dissatisfied with the Judgment of the Hon, Mr. Justice D.G Thompson, J, by way of a Notice of Additional Grounds of Appeal dated the 18% day of July 2013 appealed to the Court of Appeal in Freetown. By Judgment dated 24 day of April 2014, the Honourable Mrs. Justice Matturi Jones, J, as she then was set aside the Judgment of Hon, Mr. Justice DG Thompson Jand remitted the matter for re-hearing by a properly constituted Local Appeals Division of the High Court in Bo. The said Appeal was re-heard with the Hon, Mr. Justice DB Edwards presiding and on the 12" day of March, 2015, disallowed the appeal and found in favour of the Respondent. It is against that Judgment that the Petitioners have appealed. Scope of the Appeal

5. Rule 32 of the Court of Appeal Rules Public Notice No. 29 of 1985 provides thus:- “The Court shall have power to give any Judgment and make any Order that ought {0 have been made and to make any such further or other Orders as the case may require including any Order as to cost. These powers nay be exercised by the Court not withstanding that the Appellant may have asked that part only of the decision be reversed or varied and may also be exercised in favour of all or any of the Respondents”. 6.1 shall now proceed at this juncture to consider the grounds of appeal in this matter

7. The subject matter is a piece of land, situate, lying and being at Torwama e Village along the Torwama Road, Tikonko Chiefidom, Bo District in the Sounthern Province of Sierra Leone. ‘The said property was a subject matter of a Lease Agreement for a term of 50 years, between the Chiefelom Authorities/Cousil in Tikonko and one J. Matter & Co, which said Lease Agreement was tendered as Exhibit R. The parties to the Lease Agreement are clearly stated thereon as the . Tenant, } Mattar & Co and the Paramount Chiet, }.K Macavory Hl, the Priacypal

— be- Chiefdom Speaker, H.M Sandi Moiba, Section Chief Charles Mewah and Town Chiefs John Bos and Siatta Feigbo, Mv. Bayoh and Tom:ay Bundo as Principe! Members of the land owning families (usufruct owners). The signatories to the . Lease were as follows: a. Paramount Chief - MK jiba tt b. Chiefdom Speaker * Sulaiman c. Tribal Authority - PP Kamanda d. Tribal Authority: Siafa Feigbo @. Tribal Authority. + Mbayo Amoh. 7 eee = ~E Tribal Authority ~~~ >" Ngegba Ngelegia — g. Tribal Authority Tommy Bundu hTenant © Messrs}. Mattar & Co

8. By a Deed of Surrender dated the 28 March 2004, the Tenant, | Mattar & Co. surrendered the said [ease to the Paramount Chief and the usufruct owners of the said land. By a Deed of Conveyance dated the 28" March 2004, the same parties in Exhibit R, (the usufruct owners) conveyed to Dr. Momodu Yillah as Purchaser for value without Notice an area of 52.1502 of land surrendered by Messrs J. Mattar & Co.

9. The gravamen of the submission of Counsel for the Appellants evolves around the validity and effect of Exhibits R and §, the Lease Agreement and the Deed of Surrender. Counsel for the Appellant contend that one of the parties to Exhibit R was already deceased when Exhibit R was executed; he allege fraud Counsel submits that the Purchaser in the Deed of Sale was never a bona fide Purchaser for value without notice. He referred the Court to Exhibit 0, a letter dated the 12 day of February 2003 written by one M.T Ngobeh, the then Solicitor of the Luseni family, which according to Counsel, gave a warning tothe Respondent, De Yillah not to do business with Joseph Bundu, a witness for the Respondent. He further submits that they had warned that the said Lease Agreement should not be assigned to another Construction Company and that the family is not keen on renewing the Lease upon its expiration. Not withstanding the warning, the Respondent went ahead and bought the said land from the individuals mentioned in Exhibit S.

10. We are of the view that Counsel for the Appellants has failed to bring out facts to show that the Respondent acquired the said piece of land fraudulently. ‘The only argument presented by Counsel for the Appellants in this regard is about the signature of a deceased party. This argument fails in every sphere. The Appellant firstly, did not at any time, during trial of the case in the Court below allege fraud which requires strict proof. We shall refer Counsel to Order 8 Rule 1 : of the High Court Rus, 2007 11, Having gleaned Exhibits R and S, we observe that the parties on both documents are the same. The Appellants’ Counsel has only complained about one of the signature on the Lease and has not done so in respect of the Deed of Surrender. The acreage on Exhibit R, the Lease Agreement is the same as the acreage ofthe land on the Deed of Surrender as in Exhibit S

12. It should be noted that the grousics of appeal and the issues raised in this appeal were also the same grounds argued before the Honourable Mr. Justice DB Edwards by way of appeal against the decision of the District Appeals Court cs dated the 24" February 2012, delivered on the 6% March 2012. The Learned Hon. Justice DB Edwards at page 270 of the Records of appeal had this to say regarding Exhibit 0: “Counsel forewarns the Defendant/Respondent not to transact business with the individuals he wanted to do business with as they were not the fitand proper ~~ persons to do business with in respect ofthe land business”

13. He further argues that the existence of the letter, the service thereof on the Respondent was not controverted. The Learned Judge further says at page 271 thus: ‘ “Secondly, there is no need to controvert the service nf the letter as suggested. He who asserts must prove; there is proof of the existence of this letter as seen in Exhibit O but there is no proof of service before me. Dr. Yillah never testified and there is no weigh book of service or any proof of service. Clearly, with the address of the letter so confusing, you cannot with certainty say that Dr. Yillah was actually served as ulleged. What is OC? If you say it means Officer in Charge, it is out of Context. Even if you assume itis a mistake and say it should have been C/0, “in care of, it will stil be out of context and mean the letter was for J. Mattar & Co instead! of Dr: Yillah, the Respondent, herein’.

14. Obviously, the effect of Exhibit 0 on the Respondents’ Title is of no moment. We can only conclude that the Respondent was a bona fide Purchaser for value without notice

15. Assuming thatthere were irregularities regarding the transfer of ownership of the said land to the Respondent, we hold that such irregularities were adequately dealt with by the Learned Judge. The argument by Counsel for the Appellants must fail and falls on the wayside.

16. The next ground of appeal is that the Presiding Judge erred in law and in fact by failing to take into consideration the Petitioners’ case in its entirety and as such reached a wrong conclusion with regards the Petitioners’ claim of ownership.

17. Counsel for the Appellants has argued that throughout the Judgment of the Hon. Mr. Justice DIB Edwards, jhe seemed to be ofthe opinion that the only proof of ownership one could proter to lead especially ifthe land hac been in existence he since 1963 should be documentary in nature. He must have drawa that conclusion aided by Exhibit V, the Locus Report of the Regional Surveyor who also seemed to be of the view that since the Petitioners’ witness Aujustine Luseni did not produce any plans, he is bereft of any claim to the land. Counsel further submits that it is trite principle of customary law that majority of lnacled

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