Benjamin Juxon-Smith v V Vincent Lamin Kanu (CIVAPP 52/2022) [2026] SLCA 5 (14 July 2026)

Civ. App. 52/2022 IN THE COURT OF APPEAL OF SIERRA LEONE Between Benjamin Juxon- Smith - APPELLANT v. Vincent Lamin Kanu Jnr. - RESPONDENT (Administrator of the Estate of Vincent Kanu Deceased)

Coram

Justice Abdulai M. Bangura JSC (Presiding) Justice Reginald Sydney Fynn JA Justice Michael P. Mami JA Representation: _ Gbatundu Kutubu Esq for the Plaintiff Lambert & Partners for the Respondent Judgment dated td Suly 2026 * FYNN JA

Background

1. This appeal comes to us after a successful application made pursuant to Order 17 of the High Court Rules 2007. The Respondent/Defendant being dissatisfied and maintaining that the matter was unsuitable for disposition under 017 has now appealed to us.

2. The action was first instituted by writ of summons in which the plaintiff, who is suing as the Administrator of the Estate of one Vincent Kanu, is asking the court amongst other things, for a declaration that property situate at Sir Samuel Lewis Road (the disputed property) forms part of the Estate of the said Vincent Kanu. The Defendant filed a statement of defence and Counter claim. The defendant claims in his defense that “by

apace Juxon-Smith . Vincent Kanu Court of Appeal Coram: Bangura SC, Fyn JA & MamiJA

virtue of an arrangement with the late Vincent Kanu” he was entitled to have the ‘ownership of the disputed property transferred to him.

3. The Plaintiff by Judge’s Summons then approached the court to decide the matter on a

point of Law. The plaintiff posed three questions as follows: “Whether as a matter of law:

i. The Statement of Defence filed by the Defendant raises/constitute a valid defence in law to the claims of the Plaintiff contained in the writ of summons in this action

ii, The Counterclaim made by the Defendant against the Plaintiff is valid ond enforceable against the plaintiff and

ii, The several agreements mentioned in the statement of defence and counterclaim are void and/or unenforceable In light of and/or for the construction of the provisions of the Registration of Instruments Act CAP 256 of the Laws of Sierra Leone 1960(as amended) and or the Statute of Frauds 1677.

4, The Learned Trial Judge (LT)) proceeded to answer the questions posed. In its answer the Court declared that the plaintiff as Administrator of the Estate of Vincent Kanu is entitled to the immediate possession of the disputed property as it is part of the estate of Vincent Kanu. The defendant now appellant does not agree. . The Appeal

5. The Appeal is set out under eight grounds. These however can be distilled into two main issues as follows: Firstly, that the LTJ “proceeded to consider and give judgment ‘under order 17 when issues of fact are interwoven with issues of law”. The appellant contends that the matter was not suitable for determination under 017 of the High Court Rules. Secondly, that the LT) relied on hearsay evidence which at best ought to have been presented in a proper trial by the appropriate witness (es).

6. The Appellant's Submissions: The appellant had filed written submissions on which he relied. Counsel for the appellant made oral submissions on his grounds 1, 3 and 4 Conjointly as these share the concern of failure to recognize that there are factual issues interwoven with legal issues thereby making the case unsuitable for determination under

017. Counsel urged that by dealing with the single legal issue as the LT) did, the

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LTJ now left unanswered several important issues. Counsel submitted that by adopting that process the court was deprived from fully appreciating the uniqueness of the case resulting in a finding that ignored crucial and germane factors.

7. The appellant concedes that the absence of a written agreement would generally undermine ownership claims such as the one advanced by the appellant. He submits however, that the want of a written agreement is curable by relevant evidence of the existence of a parol contract. He argues that the appellant has witnesses such as would testify to the existence of the oral agreement between the deceased and the appellant. He submits further that a resort to 017 has stifled the production of such curative evidence as the process does not make room for the testimony of the witnesses.

8. Referencing his grounds 5 & 6 the appellant’s counsel submits that the LTJ failed to recognize the exceptions to the Statute of Frauds 1677. One of these exceptions, the appellant argues, should apply to his present situation. He submits that the doctrine of part performance and or promissory estoppel being exceptions to the strict rules provisions of the statute would, in a full blown trial have cured the parol agreement's short comings.

9. The appellant also submits that the LT) had relied too heavily on the affidavit of the Plaintiff (now respondent) contending that the contents of that affidavit could have formed the basis of a witness statement or even testimony in a trial.

10. The Respondent's Submissions: The respondent also filed written submissions on which he relied. The respondent's counsel maintained that the appeal is devoid of merit. He submits that the case is pretty straightforward. H argues that there is no evidence of an agreement relating to the disputed property. He also argues that the alleged reference to friends who knew about the agreement is vague with no names being mentioned. He submits that also there is no evidence of the alleged mechanical services given nor any relating to the alleged improvements on the land which could have been made for the tenant’s convenience considering his prolong occupancy.

11.He argues that the matter is suitable for determination under

017. Alll the criteria for suitability he says have been met and he maintains that the facts in dispute do not affect in anyway the question of law raised. He argues that the basic question posed is whether land can be transferred orally in Sierra Leone.

12.The respondent further submits that the Supreme Court has interpreted $2 of the Registration of Instruments Act as amended; he argues that the ratio in Abdulai Sesay v Emad Bahsoon SC Civ. App No. 6/2005 binds this court.

31Page Juxon-Smith . Vincent Kany Court of Appeal Coram: Bangura IC, Fyn JA & Mami JA

Deliberations

13.The parties do not appear to be at variance with respect to the law governing O17 applications. This court’s ruling in Betty Mansaray v. Kamara-Williams Misc App 4/2004 has been cited and we accept that it does set out a viable guide on the use and applicability of

017. When a court considers an application to decide a case on a point of law it is crucial that the court first tests and answers the question on whether the case is suitable for determination pursuant to 017.

14.A Judge who has been invited to decide a case on a point of law must first come to a conclusion as to whether the case is suitable to be decided on a point of law. Such suitability it has been shown depends greatly on whether the question posed when answered will leave the whole of the issues settled. Korso Finance Establishment Anstalt vJohn Wedge (unreported, see Supreme Court Practice 1999) was cited to make the point that if issues remain unresolved after answering the question posed then the case cannot be one suitable for determination under order

17. It also supports a position that a construction question is ultable for determination ifwpur viol eacbt, aa tee us

15.1n the Betty Mansaray case the opinion was clear that when facts are comestedri wou usually be unsafe to decide a matter pursuant to

017. The court posed the question: “To what will the law be applied?” It is important to clarify that this should not be taken to mean that any given set of facts raised by a party which are disputed by the other would immediately lead to unsuitability. Read carefully the opinion was that facts should be interwoven with the legal issue (see State v Bank of India v Murjani Marketing 1991] Where the disputed facts can stand separate from the legal issue to be decided, as where it is but a question of construction of a statute, then suitability may not compromised.

16.1n Margai v. Seray Wurie (Unreported) the court was of the opinion that “the case is replete with many contentious factual issues. Many of these contentious issues need to be resolved first before the legal issues which were raised for determination can be clearly addressed”. The court found there that if the ‘contentious factual issues’ were not first resolved a clear application of any legal determination was not possible. This should not be read to mean that any factual disagreement makes a case unsuitable for order

27. Any other interpretation would lead to the absurd position that a party who is ates Juxon Smith. Vincent Kanu Court of Appeal Coram: Bangura SC, Fynn JA & Mami JA

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