Bangura v Bangura (Civil App 35 of 1977) [1977] SLSC 6 (26 January 1977)

ae 151 Siva Leone Bar Asian Law Repos ———_—(I97482 1 SLBALR BANGURA v BANGURA cA ‘COURT OF APPEAL OF SIERRA LEONE, Civil Appeal 35 of 1977, Hon Mr Justice KEO During PJ, Hon Me Justice SCE Wame JA, Hon Mr Justice CS Davies JA, 26 January

U1} Land Tite ~ Sale of land ~ Parol contract ~ No transfer of land in writing — Whether part performance sulficient ~ Whether deed of transfer executed by deceased vendor's next of kin enforceable ~ Circumstance in which parol contract forsale of land enforceable {2} Land - Tile ~ Requirement to show history of ownership of land for 40 years — Vendor and Purchaser Act 18745 1 {3} Land — Trespass — Distinction between trespass based on ttle and trespass based on posession ~ Standard of proof inaction for trespass based on ttle higher than for ‘action base on possession ‘The respondent agree to purchase a piece of land at Main Road, Wellington Village inthe ‘Wester Area of Siera Leone from Kebbie Bangura (the vendor"). He paid Le210 forthe land by three installments for which he obtained receipts which he later toe up. The vendor died before he had conveyed the land to the respondent. Subsequently, by a Deed of ‘Agreement, the children ofthe late vendor purported 0 transfer the land to the respondent. “The plait made a claim for wespass against the defendant, who constructed a pig's pen on the land and refused to pul it down. The High Court granted this claim and the defendant ppealed. The main issues were whether the respondent had ever obtained title tothe land and whether the vendor had a ttle to the land which could have devolved on his personal representatives, Held, pr Warne JA allowing the apes: |

1. There was no Memorandum in Writing signed by the vendor forthe transfer ofthe land. Although there was evidence thatthe respondent had part performed the agreement by payment ofthe sum of Le210 to the vendor this payment alone ad entry into possession ‘id ot give the respondent eto the land. The Deed of Agreement executed between the children and the next of kin ofthe vendor and respondent had no force in aw and was unenforceable. It was neither a Memorandum in Writing as required by Section 4 of Statute of Frauds nor was it a Deed of Conveyance as provided for by the Conveyancing and Law of Property Act 1881

2. There are specific cicumstances where a parol contact of sale regarding land is enforceable. These are where: © the party against whom itis sought wo enforce the contract fils to setup the want of writing asa defence othe ation: ()_ifehas fraudulently prevented the creation of writing evidence; (ii) if there has been a parol agreement that the estate which is to be conveyed absolutely tothe purchaser shall beheld by him on trust by the vendor, (iv) if the plainiff can prove a sufficient act of part performance. None of these circumstances applied in this case.

{197461 SLBALR Bangua v Bangura is

3. The vendor should have shown the history ofthe ownership of the land for a peri of st leas 40 years to satsy the provision of s 1 ofthe Vendor and Purchaser Act 1874. his was not done inthe instant ease and as such the contract of sale ofthe land between the ‘vendor and the respondent was of no effect. There was no evidence that the vendor had been in possession ofthe land for atleast 40 years. The very foundation on which the claim for trespass was made did not exist. Re Cax and Nevo's Contract {1891} 2Ch 109 applied.

4. Theres a clear distinction between a claim for trespass based on ttle to land and that based onspossesson of the land. Ite claim based on tle fis, the cout should proceed to examine the evidence regarding possession, if any. The standard of proof in aelaim ‘based on tie to land is higher than that required in a claim based on possession. The evidence before the lower court showed thatthe respondent was notin possession ofthe land atthe time ofthe instuion ofthe action. There was no evidence that a the time of alleged trespass the respondent was in exclusive possession of the land. Therefore be could not ground a elsim for teespss based on possession. Dunstan E John & Reuben Macaulay v Wiliam Staford, Alfred George Nathaniel Cole & John Eade Taylor (Supreme Cour, Civil Appeal 1/75, Bets JSC, unreported followed.

Cases referred to

(Cox and Nevo's Contract, Re (1891) 2Ch 108

Dunstan E Jol & Reuben Macaulay v William Stafford, Alfred George Nathaniel Cole &

“on Eddie Tayor (Supreme Cou, Civil Apeal 1/75, Bets ISC, unreported)

| Henriewa Morgan and Arovherv Margaret Leigh Civil Appeal 275, unteported)

Legislation referred to

(Conveyancing and Law of Property Act 1881

Stance of Frauds 1677.54

Vendor and Purchaser Act 187451

Other sources referred to

Cheshire Modern Real Property ™Ed pp 632, 633

Appeal

‘This was an appeal by the defendant agains the judgment of Lawrence-Hume J (Acting) on

the 18° September 1973 granting a claim for trespass made inthe High Court by the paint,

Abdul Bangura. The facts appear sufficienly in the following judgment.

Mr € Doe-Smith for the appellant.

Mr JV Davies for he respondent.

WARNE JA: On the 18° September 1973, a judgment of Lawrence-Hume J (Acting) was

delivered by Idogu J, granting a claim for wespass made in the High Court by the

plainiffespondet. cis against this judgment that the defendanVappellan has appealed to this court. Te substance of that judgment is that the plantirespondent has discharged the burden of proving hist tothe land in dispute ad that the defendan/appllant has tespassed on the said lan. The learned trial judge, intr ali, made ths finding: “Has the paint ischargd the burden of proving his tile to the land? I find that he bas. There i evidence that he bargained for the purchase ofthe land with Kebbie Bangura (deceased). That he paid the sum of Le210 as purchase money. That after the death of Kebbie Bangura his niece and ether next of kn completed the verbal contact of sale by

en 18 Sioa Leone Bar Asoxiton Law Reports (0974-2) SLBALR

‘executing a transfer of land. And finally, thatthe land was registered by the Registration

Officer as the property ofthe plaintiff Abdulai Bangura”

“The leaned trial judge made this finding and ordered thus:

“I find therefore, that the defendant has wespassed on the land and I hereby give

judgment for the plaintiff. I order thatthe defendant do pay tothe plaintiff the sum of

Lel60 as damages for his wespass to the land. [also order the defendant by himself, his

servants or agents, otherwise, to desist from futher trespass on the land. And I finally

‘order the plant's costs to be taxed and paid by the defendant herein. The defendant

bears his own costs.”

Its agains this judgment thatthe following grounds of appeal have been lodged

1. That the eared trial judge was wrong in law in holding that the plaintiff was not obliged to investigate and show the title ofthe alleged vendor.

2. The leamed trial judge was wrong inlaw in holding that although the alleged vendor ofthe land in dispute died before executing a conveyance no administration of his state if any was necessary,

3. That the eared trial judge was wrong in law in holding thatthe purported Deed of ‘Transfer by the chikiren of the deceased although they didnot give evidence atthe trial was sufficient to pass the fee simple of the land tothe plaintiff.

4. That the Jeamed trial judge was wrong in law in holding that registration of a ‘purported transfer deed by the children ofthe alleged vendor was tantamount to specific performance ofan alleged contrat of sale ofthe lan in dispute.

5. That the Jeamed trial judge was wrong in law holding that failure of the witness to the signatures of literate to give evidence was not fatal.

(6. The judgment is against the weight of evidence.

‘The facts of the case may briefly be stated. The plaintiff negotiated with one Kebbie ‘Bangura forthe purchase of a piece of land situated at Main Road, Wellington Village inthe ‘Westem Area of Siera Leone. The plaintiff paid for te land by three installments for which he obtained receipt and he later tre them up. The amount he paid was Le210. He was shown the land by Kebbie Bangura in the presence of a surveyor who put beacons on the land. Two ‘months before the death of Kebbie Bangura, the purported vendor, the plaintiff went to him and reminded him that he Kebbie Bangura had not conveyed the land to him. After the land hhad been shown to the plaintiff, he planted on it and put his sister-in-law in possession to continue the plantation.

Keble Bangura died before he had conveyed the land tothe plaintiff. Sometime in 1967, by a Deed of Agreement, the children ofthe late Kebbie Bangura purported to transfer the land to the plaintiff. The plaintiff said he later saw the defendant consructing a pig's pen onthe land. He asked him to pull it down but defendant refused and the pen is still on the land. The defendant has said that he isin possession ofthe land and it devolved on him onthe death of his grandmother.

‘Counsel forthe defendanvVappellant argued Ground 6 and then accepted the point under Ground 6 in prosecuting Ground 1 to

5. Counsel referred to the Statement of Claim and the ‘Statement of Defence and the entire judgment ofthe lower cour. Counsel complained thatthe tile of the plaintiff was acquired by the Deed of Agreement referred to in paragraph I of the ‘Statement of Claim and ths was after the death of the purported vendor. Counsel argued that the defendanvappellant is in possession and the plaintifrespondent didnot receive ‘conveyance before the death of the purported vendor and the receipts he received for payments

(197489) SLBALR Bangura» Bangura 1st made for land were never produced. Counsel forthe appellant complained that there was no

evidence ofthe rot of tile of Kebbie Bangura deceased) given by the respondent. Counsel submit tha the lared tril jude, in considering te evidence before him applied the wrong ‘Principe of law, sothe whole judgment cannot stand and should beset aside.

| am ofthe view that if Ground 6 succeeds the appeal shouldbe allowed.

1 will therefore consider the offensive passages of which Counsel has complained and relate them tothe evidence.

“The first passage sates:

“Before Kebbie Bangura’s death there was a binding contact of saleby vue ofthe

payment and acceptance of the purchase money of Le210 as deposed by Dankay

Bangura, PWS. The puintff thereby has an equitable intrest inthe land and Kebbic

Bangura retained the legal estate. The legal estate could have been transferred to the

plaiift only by the execution of a conveyance. But the paint having paid the

purchase money he was the el beneficial owner of the property in dispute”.

“The leamed tral judge has supported his finding with a passage he refered to in ‘Cheshire Mader Real Property 7*Eaition page 632 wich reads:

“But although the general rule is thatthe contract forthe sale of land must be in writing,

yeti cern ceumstances a parol contact may become enforceable”

This provision, with respect tothe tial judge, hasbeen referred to in isolation without taking any proper cognizance ofthe requirement of $4 ofthe Statute of Frauds 1677 or the certain circumstances which can make a parol contract touching land become enforceable. From the evidence before the lower cout there was no Memorandum in Writing signed by the pany to be charged, that isto say, Kebbie Bangura (deceased). There is evidence that the respondent had part performed the agreement by payment ofthe sum of Le210 to Kebbie ‘Bangura. [am not quarreling with the finding of the judge in this regard. Bu id this payment lone and to entry into possesion give the respondent tie to the land? I do no think so. The Deed of Agreement executed between the children and the next of kin of Kebbie Bangura (deceased) and respondent has no force in law and is unenforeable. It is neither a ‘Memorandum in Writing as required by Section 4 of Statute of Frauds nor is it a Deed of Conveyance as provide for by the Conveyancing and Law of Propet Act 1881, nor can the respondent enforce any agreement against the personal representative of Kebbie Bangura (deceased) before they bave taken out Letiers of Administration for his estat. i any.

‘What ile had the respondent inthe lan? T donot think he had any. believe the leamed trial judge misdirected himself on the law of part performance forming the basis or acaim for Specific performance. There was no claim for specific performance before the lower cour and the Registration ofthe Deed of Agreement ~ Exhibit “A” id not pass any intrest the land. “This in my view, with respect tothe learned wal judge, i a misconception of the lw relating totileto land

The certain circumstances which can make @ parol contract of sale regarding land enforceable ae clearly st out on pp 632 and 633 of Cheshire Moder Real Property (bid). They are:

“athe pany against whom iis sought to enforce the contract fis ose up the want of

writing asa defence tthe action, asin James v Sih (1891) 1 Ch 384; oF

If he has fraudulently prevented the eration of writing evidence as in Clarke v Grant

(1807) 14 Ver 519: or

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