Brima Jalloh v Sannoh V. Mustapha (CC 15 of 2005) [2009] SLCA 23 (7 July 2009)

pRArr (WS cC. APP. 15/2005 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: BRIMA JALLOH APPELLANT . AND SANNOH VICTOR MUSTAPHA RESPONDENT

Coram

Hon. Mrs. Justice S. Bash-Taqi, JSC, Presiding Hon. Ms. Justice S. Koroma, Jsc Hon. Mr. Justice E. E. Roberts, JA Barristers D.G. Thompson, Esq. for the Appellant Mohamed Mansaray, Esq. on Record for the Respondent (No appearance by Respondent & his Counsel)

JUDGMENT DELIVERED ON A DAY OF Suty 2009 S$. BASH-TAQI, JSC: - This appeal concerns the ‘ownership of land at Calaba Town Freetown. By a Writ of Summons dated 12" November 1998 issued in the High Court by the Appellant against the Respondent, the Appellant claimed (i a declaration of tte toa pice of land situate at Main Road Calaba Town Freetown bounded on the ‘North by private property 129. $ feet, on the South by private property 114. 95 feet, on the East by Main Road 54. 8 feet, on the South West by private property 27.0 feet; on the West by private property 38. 5 feet the whole covering an area of 0.1639 Acre; (i) Possession of the said land; (it) Damages for ‘Trespass and (iv) An Injunction to restrain the Defendant his servants and/or agents from trespassing, building, interfering with the said land. In his Statement of Claim, the Appellant pleaded inter alia, that he bought the said land from one Ekundayo Mary. Davies who executed a Conveyance dated 25° May 1972 duly repsteed as number 381 at Page23 in Vol. 253 in the Office of the Registrar General in Freetown; thgt the Respondent unlawfully entered upon the said and and commenced byilding a house thereon and despite attempts by the Appellant to stop him from doing 10, the Respondent persisted in trespassing om the land. ‘The Respondent filed a Statement of Defence by his Solicitor, Roland J. V. Cole, denying the Appellant’s claim, and avers inter alia, ‘that he is the fee simple owner of land situate

yu Alen Town Road, Allen Town, Freetown: Wy fe is elaiming, and further the Appellant ha Te Appellant isnot ented tothe land Brima Jalloh. On 7" June 1999, Cowan, J, (as he then wosnnt it the mater as he is not restraining the Respondent from continuing his was) granted an Interim Injunction and determination of the action, with the usual undertakers 224 PeDding the hearing Appellant it he filed to establish his right othe injuneaion® ** ° SS8ES fiver by the ‘he tral was by Nyander 3. (a5 he the ' January 2005 dismissing the Appellant's cit om Be elivered Judgment on the 25* Judge, after reviewing the evidence, said: - sts. In his Judgment the Learned | “vu the Plaintif’s ownership of th ; | + Possessory title by virtue oe Sena Decne El seme from a | paged of the land is in fee simple absolute dating fea Pr pared f that date according to the eviden " one Chief Bonafide.” ice Of Sorie Kargbo DW3 the land was owned by The Judge therefore concluded:- | “Tfind gaps in the evidence of the plaintiff and his witnesses. Ind the ridence inadequate. I cannot safely say that he has proved his ease as the balance of probabilities. I believe the report of the surveyor fr the defendant. On the facts hold that the defendant has a better tile to the disputed land. The case for the plaintiff is therefore dismissed...” i] The Respondent did not file a Counter-Claim, but the Learned Judge held thet there was | nothing adverse to this omission and went on to adjudge that the Respondent is the fee | simple owner of the disputed property. He also found that issue was made in the High Court that the land in dispute are in fact two different pieces of land i.e. “one at Allen Town and the other at Calaba Town”. He recalled the Respondent's Surveyor a saying in the evidence that: - “These are two different pieces of lands with a common boundary". (see p. 78). He also recalled the Report of the Court Registrar as saying after his investigations on the ground that the land in dispute is located at Calaba Town. The Report states: “The Court having visited the locus elt the land is at Calaba Town...” Tht-Leamed Judge compared that report to the evidence of the Respondent's Surveyor, James Morlai Bangura, and concluded in his judgment: “sesessusassesesseestssmaacneweennny [anid] whilst considering the evidence of DW1 | James Morlai Bangura the surveyor for the defendant who once worked at the Department of Surveys and Lands, ke said thatthe land is at Allen Town" (see page 78)... Despite the above evidence, the Leamed Judge went on to conclude that the matter cbacemed a single piece of land. ; idence quoted | The Appellant is of the view that the above conclusion was wrong as the evidence quot hove suggests that there are two pieces of land which are separate and distinct, therefore

teing dissatisfied with Nylander, J°s Jug, {20 following ground:. ment he bas appealed to this Court on the

(i) That the learned trial judj

® vhatever nomenclature is py in Jw to hold that irespective of

are talking about is the same pice of land, slag CPS ld at we |

the Defendant; ignoring the site plang of iaimed by both the Plaintiff and

showing thatthe respective pieces of land a mit and the Defendant

Colaba Town and at Allen Town Road, Allen Tess gig 3 Mote Read

‘accepting that the ing wan, at the same time

Towne - court having visited the Locus felt the land is at Calshe |

(ii) The Learned Trial Judge was wrong in his i ‘i _ |

Jaw in holding that since the Phaintirs omnes ore | and mame bows

: ossessory ttle by a Statutory Declaration dated 1970 and tke teens ] ttl isin fee simple absolute dating from 24" March 1981 and teense cf ek

without more that Mr. & Mrs. Rashid Thomas owned the land in 1975, |

(a) Failing to look for the root of title of the Defendant beyond 1981.

() Failing also after holding that in 1975 Mr. & Mrs. Rashid Thomas owned land without proof of documentary evidence that the ‘Statutory Declaration dated 1970 predates the declaration that in 1975 Mr. & Mrs. Raschid owned the land by five years.

(©) Failing also to consider the declaration of the Vendor of the Plaintiff thst ] is on the 25 day of May 1972 she had been lawully seised of in fee | simple in possession or otherwise wel entitled to a vast piece or parcel of \ land tenements for well nigh sixteen (16) years without let or hindrance

: predating it to 1956,

(@) That the said judgment is contrary to the legal proposition the leamed Trial Judge set out to apply to the facts and is against the weight of the evidence adduced in the case.

‘The-issues in the High Court action where three fold, (1) firstly, whether the disputed | land climed by the Appellant is a different piece of land from that claimed by ta Respondent in his defence; (2) secondly, whether the Appellant's tile deeds relate to } land in dispute, and thirdly, whether the Appellant proved title to the land so as to be entitled to a declaration of title. , i ituate at Calaba tnhis Sutement of Claim-the Appellant claimed to be enti 0 perpen Town. He contended and called evidence to estab the Respondent's land was in Respondent in,1992 was not the land in dispute, and that che Responcin’ in ts ‘at situated some distance from the land in dispute, at Allen Town He bmited that the Leamed Judge found asa fact that ea ee adhe sane Appellant in 1972, and that the land the subject matter of land cleimed by the Respondent.

nel for the Appellant in his Skeleton Argum {ye signed site plans ofthe Appellant's end Responseeces nian nines conveyed land are located at two different locations, one at Main Road Calate sen oe Peet oF Town Road, Allen Town respectively. He referred to the evidence taken ana ee quo which the leamed Judge accepted when he held tat the disputed ined seat hana’ Town. Furthermore, the Appellant's Surveyor gave evidence tote citer cae dispute is at Main Road, Calaba Town and thet there ae tae galerte erty his evidence, the Appellant's Surveyor, PW3 said, apm pence of ea Ts “vse know a piece of land at Main Road sa en tl Cli oh eed ny told me that there was an encroachment on his property and asked sie Tehecked to find out ifthis was true I carried out the exereise and produced a compose ten He gave me copies of his own plan and that ofthe defendant. produced a vepsetof my survey exercise which is attached to the composite plan I had drawn. Thee ove ~ the documents which I produce and tender marked Ex. Cl & C2." (p. 62-63) The Respondent's Surveyor, James Morlai Bangura, also gave evidence as DWs, He also cared out a re-survey of the land and prepared an encroachment which he tendered as Exhibit “D”. He said this in evidence at page 69:

“sud had cause to visit a piece of land at Allen Town Road Allen Town. I was asked to carry out a re-survey of the lard. Iwas given two plans in respect of the land i.e. plans in Ex. Al & BI respectively. I drew an encroachment plan after visiting the land which I signed. I now produce and tender ....Ex. “D”. Plan in Ex Al shows land at Main Road Calaba Town and plan in Ex. BI shows land at Allen Town Road, Allen Tow?t.o... 0.”

Under cross-examination the witness said among other things:

= “ouusausBoth plans were correct as is seen in Exhs. Al and BI. The defendant's land is carved from land contained in plan 1284/69 while the plaintiff's land is taken from plan 410/70. These are two different pieces of land with a common « BOUNAAY oe oe oss enone aeons eres "(S00 Dp. 70)

The Ay ’ , Mr. Foday Jiba Anthony originally surveyed the Respondents lard and podiced LS. 332691 based on a Subdivision of LS. 128469 on preparation of the Respondent's Conveyance, Exh. “B1”. In the instant case the same surveyor carried out the re-survey of the land and prepared the Appellant's encroachment

| plan, Exh. “C1” & “C2”, He said in his evidence that when he prepared the encroachment | plas onthe instructions of the Appellant, forthe purpose of this action, the Respondent had encroached on the Appellant's land. He explained how the encroachment came abou! when he said he found thatthe Respondent had moved the beacons on his land from their iter Position’. Although the Leamed Judge said in is Judgment (tp. 79) that om all his “years of experience in these matters, the moving of a beacon does Ao experience _ ally if the beacons ‘encroachment to land”, inthis case, it did create a problem, especially i i DEAS ‘ere moved from the original position into another person's Jnds, as ws Cine Te ‘Se according to the licensed Surveyor P.W.

3. This brought a

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