Brima Jalloh V Sannoh Victor Mustapha (CC 15 of 2005) [2009] SLCA 5 (7 July 2009)

DRAFT CC. APP. 15/2005 K INTHE COURT OF APPEAL OF SIERRA LEONE 43 BETWEEN: BRIMA JALLOH APPELLANT 4 AND SANNOH VICTOR MUSTAPHA RESPONDENT

Coram

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

suemenr vevivenen on 7“ pavor M47 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 ttle to a piece of land situate at Main Road Calaba Town Freetown bounded on the North by private property 129. 5 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; (ii) Possession of the said land; (iii) Damages for ‘Trespass and (iv) An Injunction to restrain the Defendant his servants and/or agents from trespassing, building, interfering withthe 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 registered as number 381 at Page23 in Vol. 253 in the Office of the Registrar General in Freetown; that the Respondent unlawfully entered upon the said land and commenced building a house thereon and despite attempts by the Appellant to stop him from doing so, the Respondent persisted in trespassing on 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

tty at Allen Town Road, Allen Town, Freetown; that the Appellant is not entitled to the land he is claiming, and further the Appellant has no locus standi in the matter as he is not

« Brima Jalloh. On 7° June 1999, Cowan, J, (as he then was) granted an Interim Injunction restraining the Respondent from continuing his structure on the land pending the hearing and determination of the action, with the usual undertaking as to damages given by the

A Appellant if he failed to establish his right to the injunction.

a ‘The trial was by Nyander J. (as he then was), and he delivered Judgment on the 25 January 2005 dismissing the Appellant's claim with costs. In his Judgment the Learned Judge, after reviewing the evidence, said: -

“vu the Plaintiff's ownership of the land as evidenced in Ex. Al stems from a + Possessory title by virtue of a Statutory Declaration dated 1970. Defendant's ownership of the land is in fee simple absolute dating from 24/3/ 81 and before that date according to the evidence of Sorie Kargbo DW3 the land was owned by ‘one Chief Bonafide,” ‘The Judge therefore concluded:- “Lfind gaps in the evidence of the plaintiff and his witnesses. Ifind the evidence inadequate. I cannot safely say that he has proved his case on the balance of probabilities. I believe the report of the surveyor for the defendant On the facts I hhold that the defendant has a beter title to the disputed land. The case Jor the plaintiff is therefore dismissed...” ‘The Respondent did not file a Counter-Claim, but the Learned Judge held that 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 ‘Curt 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 as saying in the evidence that: - “These are two different pieces of lands with a common Soundary”. (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 felt the land is at Calaba Town...” ‘Thé-Learned Judge compared that report to the evidence of the Respondent's Surveyor, James Morlai Bangura, and concluded in his judgment: z sssmmennenemnn [and] whilst considering the evidence of DWI James Morlai Bangura the surveyor for the defendant who once worked at the Department of Surveys and Lands, he said that the land is at Allen Town” (see page 78). Despite the above evidence, the Learned Judge went on to conclude that the matter cbncemed a single piece of land. The Appellant is of the view that the above conclusion was wrong as the evidence quoted above suggests that there are two pieces of land which are separate and distinct, therefore

being dissatisfied with Nylander, J's Judgment he has appealed to this Court on the following ground:

7 (That the leamed trial judge was wrong in law to hold that irrespective of whatever nomenclature is given to the location of the disputed land what we

a are talking about is the same piece of land, claimed by both the Plaintiff and

the Defendant; ignoring the site plans of the Plaintiff and the Defendant

showing that the respective pieces of land are located at Main Motor Road

a Calaba Town and at Allen Town Road, Allen Town, Whilst at the same time accepting that the court having visited the Locus felt the land is at Calaba

Town.

(ii) The Learned Trial Judge was wrong in his interpretation and application of the

law in holding that since the Plaintiff's ownership of the land stems from a

‘ possessory title by a Statutory Declaration dated 1970 and the Defendant's title isin fee simple absolute dating from 24" March 1981 and because of that

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

(2) Failing to look for the root of ttle of the Defendant beyond 1981.

(b) 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 that is on the 25" day of May 1972 she had been lawfully seised of in fee simple in possession or otherwise well 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, (I) firstly, whether the disputed land claimed by the Appellant is a different piece of land from that claimed by the Respondent in his defence; (2) secondly, whether the Appellants ttle deeds relate to the land in dispute, and thirdly, whether the Appellant proved title to the land so as to be entitled to a declaration of ttle. In his Statement of Claim’the Appellant claimed to be entitled to land situate at Calaba Town. He contended and called evidence to establish that the land conveyed to the Respondent in.1992 was not the land in dispute, and that the Respondent's land was in fact situated some distance from the land in dispute, at Allen Town Road, Allen Town, He submitted that the Learned Judge found as a fact that the land was conveyed to the Appellant in 1972, and that the land! the subject matter of the action is one and the same : land claimed by the Respondent.

p21 Counsel for the Appellant in his Skeleton Arguments argued that the evidence conveyed by the signed site plans of the Appellant’s and Respondent's disclosed that both pieces of ‘ land are located at two different locations, one at Main Road Calaba Town and one Allen Town Road, Allen Town respectively, He referred to the evidence taken at the locus in Ls quo which the learned Judge accepted when he held that the disputed land is at Calaba - ‘Town. Furthermore, the Appellant’s Surveyor ‘gave evidence to the effect that the land in dispute is at Main Ros, Calaba Town and that there are two separate parcels of land. In * his evidence, the Appellant's Surveyor, PW3 said: - “coud know a piece of land at Main Road Calaba Town. The Plaintiff hired my services to cross check and determine the orientation of his survey plan. He also {old me that there was an encroachment on his property and asked that I checked to find out if this was true. I carried out the exercise and produced a composite plan. He gave me copies of his own plan and that of the defendant, I produced a report of my survey exercise which is attached to the composite plan I had drawn. These are ~ the documents which I produce and tender marked Ex. C1 & C2.” (p. 62-63) ‘The Respondent's Surveyor, James Morlai Bangura, also gave evidence as DW4. He also carried 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: “sod! 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 land. I was 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. B1 shows land at Allen Town Road, Allen Townt.........." Under cross-examination the witness said. among other things:

a “seus weeBoth plans were correct as is seen in Exhs. Al and Bl. The defendant's Jand 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 OURAN oo. soe se oe os oa se oes (SCO Dp. 70)

The Appellant's Surveyor, Mr. Foday Jiba Anthony originally surveyed the Respondent's land and produced L.S, 3326/91 based on a Sub-division of L.S, 1284/69 on preparation of the Respondent's Conveyance, Exh. “BI”, 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 plans on the instructions of the Appellant, for the purpose of this action, the Respondent hhad encroached on the Appellant's land. He explained how the encroachment came about when he said he found that the Respondent had moved the beacons on his land from their original position’. Although the Learned Judge said in his Judgment (at p. 79) that from all his “years of experience in these matters, the moving of a beacon does not determine an encroachment to land”, in this case, it did create a problem, especially if the beacons were moved from the original position into another person's lands, as was done in this

. case according to the licensed Surveyor P.W.

3. This brought about the difficulty that the

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