Bai Bangura V Mamadu Jalloh (CIV 19 of 2005) [2009] SLCA 4 (18 June 2009)

CIV. APP. 19/2005 q3 3 IN THE COURT OF APPEAL OF SIERRA LEONE, BETWEEN: vo BAL BANGURA, APPELLANT z AND MAMADU JALLOH RESPONDENT

Coram

Hon. Mrs. Justice S. Bash-Taqi, J.A (Presiding) Hon. Ms. Justice S. Koroma, JA. Hon, Mr. Justice E. E. Roberts, J.A. Barristers S.M, Sesay, Esq. for the Appellant A. E. Manly-Spain, Esq. for the Respondent JUDGMENT DELIVERED ON THE 18™ DAY 2009 BASH-TAQI, JSC.z- The Respondent in this appeal was the Plaintiff in the High Court action brought by him against the Appellant, then, Defendant, claiming inter alia, (i) a declaration of title to land situate Of Regent Road Lumley Freetown, (ii) damages for trespass and (iii) an injunction ete, BACKGROUND, ‘The Appellant and Respondent both claim to have bought a piece of land situate at Off Regent Road Lumley Freetown from a common Vendor, one Yorroh T. Bah. The Respondent (Plaintiff) claimed to have bought the land in 1998, and although he did not. ask to see Yorroh T. Bah’s Conveyance before the purchasing, he caused a search to be Conducted at the Administrator General’s Office to ascertain that Yorroh T. Bah was the owner of the land. Yorroh T. Bah only gave him a copy of his Conveyance, alleging that {he original was missing. He went to the land with a Surveyor and found a shed occupied by one Isatu. Isatu told him that Yorroh Bah gave her permission to utilise the lend. ‘Yorroh then inftoduced Respondent to Isatu as the new owner. The Respondent endorsed {satu’s stay on the land; she paid rent to him, He surveyed the land in 1997and thereafter -Yorroh Bait executed his Conveyance dated 4"* May 1998, Exh. “A") which contained ¢ ‘Survey Plan L.S. 1445/97 dated 22" Sept 1997; the land encloses an area of 0.1032 Actes. In 1999, Isatu told him something concerning the land which made him visit the - and, and there, he found the Defendant. He reported the matter to ECOMOG.

The Appellant (the Defendant) on the other hand claimed to have bought the di sputed x land (two town lots) from Yorroh T. Bah in 1993 for One Million Six Hundred Thousand Leones (Le1,600,000.00). He made an initial deposit of Le 1,500,000.00, leaving a balance of Le 100,000.00 (One Hundred Thousand Leones). Yorroh Bah gave him a receipt dated 4" October 1993, for the land, (Exh. “C”). He went to the land with YYorroh and one Alpha; they met one Isatu, Yorroh Bah’s caretaker and he was introduced to her 2 Yas the new owner; he said he allowed Isatt to remain and continue to look after the land. He surveyed the land on 14" November 1996; his Survey Plan L.S. 2754/96, signed on 17" October 1997 covered an area of 0.206 Acres. In view of the nature of the Grounds of Appeal, it will be useful at this stage to give details of the procedural steps in the matter up to the time of the Judgement. ‘The Writ of Summons issued by one Amadu Koroma, Solicitor for the Respondent, was dated 28" September 1998. No appearance was entered by or on behalf of the Appellant. By Notice and Entry of Trial dated 22 December 1998, Amadu Koroma entered the action for trial in Freetown for Monday 28" day of December 1998. However, the Registry Stamp on the documents evidencing lodgement at the High Court Registry and Payment show that the documents were filed on 30" December 1998. On the 29" October 1999, almost one year after the action was purportedly entered for trial, Solicitors for the Appellant, Betts & Berewa, entered a Conditional Appearance for the Appellant and one month later, on the 29 November 1998, Betts & Berewa filed a Statement of Defence. Subsequently, on a date not stated in the Records, one A. Thomas of Counsel for the Appellant, applied for leave to file a Statement of Defence out of time. Nothing was said about the earlier Defence filed by Betts & Berewa on 29" November 1998. Be that as it may, Counsel for the Respondent did not object to the application. The Judge granted the Appellant leave to deliver and file a Statement of Defence within eight (8) days of the order, and then adjourned the matter to 6" December 1998, The next time the case was called was not 6° December 1998, but on 23" March 2000. On that occasion, the Respondent proceeded to open his case by giving oral evidence at the end of which then Judge adjourned the hearing to 5" April 2000. The case came up again before A. B. Rashid, J on 5 April 2000, during which the Respondent completed his evidence-in-chief and was cross-examined by Counsel Thompson for the Appellant. fig matter was further adjourned to 17 April 2000, although it was not called on that ite. On 29" June 2000, the Appellant appointed Serry-Kamal & Co. his new Solicitors in place of Betts & Berewa. On 29" November 2000 when the case again came up for hearing, Counsel for both parties were present and by consent, Miss Tucker of Serry Kamal & Co, continued. the eross-examination of the Respondent at the end of which the Judge adjourned to 11/12/2000.

“The next time the case came up before the Judge was on 8 July 2002. Counsel for the Respondent proceeded to lead his second witness. This was a Representative of the Administrator and Registrar-General and he tendered in evidence the title deeds of the

“ Respondent in respect of the disputed property as Exhibit “B". He was not cross

examined and the matter was further adjourned to 1% October 2002. There is no record of ® what transpired on 1* October 2002. On 24" October 2002, Serry-Kamal & Co applied by Notice of Motion for leave to amend the Appellant's Defence by the addition of a Counter Claim. The Respondent's Counsel was present and took no objection . ‘On 31" October 2002, the Learned Judge granted the application after which the case was adjourned to 12" November 2002, but no proceedings took place on that adjourned date. On 14" November 2002, Serry-Kamal & Co. filed the amended Defence and Counterclaim on behalf of the Appellant pursuant to the Order of 31% October 2002. The Respondent did not file a Reply and Defence to the Counterclaim. The omission went unnotice. When the case came up for further hearing, Counsel for the Respondent was present, but Counsel for the Appellant was not. Counsel for the Respondent then closed the Plaintiff's case and the matter was adjourned to 24/03/03. On 24" March 2003, Counsel for the Appellant was present, but Counsel for the Respondent was not. Miss Tucker for the Appellant (Defendant) opened the Defendant's case by calling the first witness for the Defence; the Representative of the Administrator and Registrar-General who tendered the Appellant's title deeds as Exhibit “C”; the matter was then adjourned to 8" April 2003, but it was not called on the adjourned date, but on 8° May 2003. On this occasion, the Appellant gave oral evidence after which the hearing was adjourned to 27" May 2003. There were a few more adjournments after that, before

Counsel closed the case for the Appellant on 10" February 2004.

Counsel Ms Tucker for the Appellant addressed the Court on 2™ March 2004, 18" March

2004 and 21" April 2004, urging the Court to find for the Defendant in his Counter

Claim. There was no reference to a defective Notice and Entry of Trial and no one

detected the absence of a Reply and Defence to the Appellant’s Counterclaim. On 25

June 2004 Mr. Manly-Spain addressed the Court and the Trial Judge reserved his

Judgment

On the 17" February 2005 the Learned Trial Judge gave judgment in favour of

the Respondent and dismissed the Appellant's Counter-Claim.

In giving Judgment for the Respondent, the Learned Judge had this to say:

*. “From the evidence of the defendant he did not conclude the transaction until 1998. From the evidence on both sides it does not appear that the Plaintiff was aware of any transaction between the defendant and the vendor. The Plaintiff was 4 purchaser for value without notice; for the plaintiff paid for a piece of land which was conveyed to his as evidenced in Exhibit "B”,

The Leamed Judge further went on to hold:

“Inghe absence of a Conveyance between the defendant and the Vendor there was

4 no sale until the 29" October 1998 when Yorroh purportedly conveyed the said

land to the defendant. But looking at Exhibit “A” dated # May 1998 the Vendor

had conveyed the said land to the plaintiff. Therefore as at 29" October 1998

x ~ when the vendor purportedly conveyed the land to the Defendant he had no land

10 convey to the defendant. His title has passed earlier to the plaintiff and the * laintiff was then in possession”. It is against this Judgment that the Appellant has now appealed to this Court on the following grounds: * 1, The decision is against the weight of the evidence;

2. That there was evidence which clearly showed that the Plaintiff was not a purchaser for value without notice. He met the defendant and tried to purchase the property from the defendant

3. The plaintiff filed to conduct a proper investigation of the Vendor's title. The maxim is “Caveat Emptor”

On 20" November 2007 when the appeal came up for hearing before this panel, Counsel for the Appellant, S. M. Sesay, Esq. sought leave pursuant to Rule 9(5) of the Court of Appeal Rules 1985 to amend the original grounds of appeal (at page 40 of the Records) by the addition of three further grounds. The Notice of Intention to amend filed by Counsel is dated 6% June 2007. Mr. A. E, Manly-Spain did not oppose the application; eave was accordingly granted to Appellants Counsel to file and serve the amended grounds within seven (7) days of the order. The Court further ordered both Counsel to file and serve their respective skeleton arguments within 10 days after service of the amended

Grounds of Appeal

The hearing was then adjourned to 14" December 2007. Counsel having filed their respective skeleton arguments, the appeal eventually came up for hearing before this panel on 17" January 2008. Arguing his appeal Mr. S. M. Sesay referred us to his amended Grounds of Appeal which are:

4. That the whole trial was a nullity because the action was never properly entered for trial;

5. That the matter'was heard prematurely; 6. ‘That the Plaintiff did not file a reply and defence to the counterclaim. The pleadings were not closed. He relied on the submissions in his skeleton arguments. Arguing Grounds 4, & 5, Counsel referred us to the Notice and Entry of Trial at pages 6 & 7 of the Records; both documents which are dated 22" December 1998, requests for the action to be entered for trial on 28" December 1998. However, he pointed out thatthe date on the Registry Stamp con the documents is 30 December 1998, not 28 December 1998 which indicates that ‘the documents were in fact lodged at the Court Registry on 30" December 1998, He therefore submitted that the date on which the action was said to have been entered for - trail, was not the date on which the documents were filed in the Court Registry. He pointed out that it is only when a document is paid for at the Registry that it takes effect, for this reason, he submitted, the action was not properly entered for trial in accordance

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