Balogun Francis v Augusta Gibson (CIV APP 51 of 2010) [2018] SLCA 1279 (24 January 2018)

4 IN THE COURT OF APPEAL OF STERRA LEONE

CIVIL APPEAL 51/2010

BETWEEN:

BALOGUN FRANCIS ~ APPELLANT

AND

AUGUSTA GIBSON (Lawful Attorney of | - RESPONDENT

MRS VICTORIA GIBSON)

Coram

‘THE HONOURABLE MR JUSTICE N C BROWNE-MARKE

JUSTICE OF THE SUPREME COURT

THE HON MRS JUSTICE A SHOWERS, JUSTICE OF THE SUPREME COURT (ACTING)

THE HONOURABLE MRS JUSTICE N MATTURI-JONES, JUSTICE OF THE ‘SUPREME COURT (ACTING)

COUNSEL:

H MNGEVAO ES@ for the Appellant

CT PEACOCK ESQ for the Respondent

JUDGMENT DELIVERED THE 24 fy OF JANUARY,2018

BROWNE-MARKE, JSC

The Appeal

1. This is an appeal brought by the Appellant, Balogun Francis, against a judgment of the High Court, the Hon Mrs Justice CL Taylor, presiding,

dated 2" Dece,ber 2010. The Notice and grounds of appeal are at pages 272

- 273 of the Record. They are as follows:

i, The Learned Trial Judge failed to consider the entire facts before her before arriving at her judgment, and consequently erred in construing and applying the facts before her to the conclusions reached in the judgment.

ji, ‘The Learned Trial Judge misdirected herself in failing to consider whether:

. (a) The questions of law set out in the notice of motion dated 15 ‘September,2010 are suitable for determination without a full trial of the action pursuant to Order 17 Rule 1(1)(a) of the High Court Rules,2007.

(b) The said determination will finally determine the entire cause or matter or any claim or issue in the cause or matter, subject only to any possible appeal.

ili, The Learned Trial Judge erred in law and fact in coming to her conclusions that:

(a) The Lease dated the 10"* day of December,2008 is invalid because the 2" Lessor was not one of the legal owners of the said demised premises and lacked the power of attorney of Mrs Victoria Gibson, one of the legal owners, to act on her behalf.

(b) The 6 calendar months’ notice to quit dated 29" June,2009 is invalid in law.

(c) The rent contained in the receipt dated 25"* November 2009 issued by A KA Barber is not in conformity with the stipulated rent in the lease agreement dated 10" December,2008.

(d) The Appellant should give up possession of the premises lying and situate at 14 Adelaide Street, Freetown.

iv, The Judgment is against the weight of the evidence, having regard to the fact that the Appellant was never accorded the opportunity of proving his case on a balance of probabilities, especially having regard to the failure of the Learned Trail Judge to subpoena a key witness, A K A Barber esq to shed light on the issuance of the rent receipt dated 25"" November,2009.

v. The Appellant has a good and triable defence to the action The relief sought by the Appellant is that the judgment of the Court below dated 2" Decmber,2010 be set aside and that the Appellant be given an opportunity to prove his case in that Court: and that the Respondent bears the costs of the appeal as well of the action in the Court below.

2. The appeal was filed by G K Tholleyesq, but was argued in this Court by HM

Ngevaoesq.Mr C J Peacock appeared for the Appellant in this Court and in

the Court below.

FACTS OF THE CASE

3. By writ of summons issued on 14" June,2010, the Respondent, Mrs Victoria Gibson, through her Attorney, Ms Augusta Gibson instituted action against the Appellant herein for recovery of possession of property situate at and known as 14 Adelaide Street, Freetown: for a declaration that a purported lease dated 10” August, 2008 and expressed to be made between Mrs. Rachel George and Miss Gloria Gibson of the one part, and the Appellant of the other, was void ab initio; arrears of rent; and for mesne profits. The property at Adelaide Street was conveyed to the Respondent, Mrs Rachel George, now deceased, and two others by way of deed dated 30" June,1987 and duly registered as no. 1058/87 at page 119 of Volume 403 of the Record Books of Conveyances kept in the of fice of the Registrar-General, Freetown. No words of severance were used, and so the four beneficiaries held the property as joint tenants. At pages 29 - 32 of the Record, there is a copy of a document dated 10" August 2008 which could best be described as no more than an agreement for a lease, and said to have been made between Mrs Rachel George and Miss Gloria Gibson of the one part, and the Appellant of the other. It purports to demise the property at Adelaide Street to the Appellant for a term of 15 years certain, commencing 31% July,2008. It was not witnessed, Also, it was not registered. Ms Gloria Gibson is the daughter of the Respondent.

4, By letter dated 25" May,2009, - page 33, Mr Peacock, acting on behalf of the Respondent, wrote to the Appellant, notifying him of the joint ownership of the property, and that Ms Gloria Gibson was not one of the joint owners. Further, that the signature on the document purporting to be that of Mrs Rachel George, was not hers. There was no response to this letter. So, by letter dated 29"" June,2009,Mr Peacock wrote again to the Appellant - page 34 - in which the Appellant was accused of fraud in the preparation of the purported agreement, and was given six months’ notice, effective 1” ‘July,2009, to vacate the property. The Appellant responded through his Solicitor, A E Manly-Spain esq by letter dated 16" July,2009 - page

35. Mr Manly-Spain contended that as the property was jointly owned, the Respondent could not rightfully claim sole ownership of the same as there were surviving issue of the original owners. He also rejected the allegation

of fraud, Mr Peacock replied by way of letter dated 20" July,2009 - page

5. Inhis statement of defence filed with the leave of the Court on 28" ‘June,2010, - page 60, the Appellant contended that he had a valid lease, and ‘averred that he had performed all his obligations under the said lease. But the particular lease was not cited in that pleading. The reason for that comission only became clear later. The Respondent filed a Reply to that pleading - page

62. Therein, reference was made to another lease, dated 10" December, 2008 and purportedly registered; and to a claim supposedly made by the Appellant that he had paid rent to A K A Barber esq, in Mr Barber's ‘capacity as Solicitor in charge of the property No affidavit evidence was ever filed during the course of the hearing, confirming Mr Barber's position 4s Solicitor in charge of the property.

APPLICATION FOR JUDGMENT PURSUANT TO ORDER 17 HCR, 2007

6. By Notice of Motion filed on 16"" September 2010 - pages 64 - 102, the Respondent still, through her Attorney, applied to the Court below for a determination of certain questions, and that if those questions were decided in favour of the Respondent, that she be given possession of the property. One contention raised by the Respondent is clear. By virtue of power of attorney dated 2% June,2009, the Respondent gave power to both Mrs Rachel George, and her, the Respondent's daughter, Ms Gloria Gibson, to sign “all legal documents on her behalf. But 2"! June,2009 came long after the purported agreements respectively dated 10" August, 2008 and 10" December,2008, That Power of Attorney could not therefore validate anything which had happened or, had gone before. So, as of 10"

December, 2008, Ms Gloria Gibson had no legal or proper or adequate authority to act on behalf of her mother, the Respondent herein. And, according to the Respondent's Attorney, in her affidavit deposed and sworn to on 3° Novembr,2010 ~ pages 104 -108, Rachel George, died on 22" December, 2008 - page 106, Susan George, another co-owner, had died on 9"* January, 1998 page 107; and the fourth co-owner, Ina Smith, had died on 12" August, 2002 - page 108.

7. Thereafter, by letter dated 26" October 2010, - pages 109 -110, Mr Peacock wrote to Mr Barber, now deceased, seeking clarification of the issue

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