Carew v Lavahun (SC CW APP 1 of 1996) [2010] SLSC 5 (21 January 2010)

t1-- IN THE SUPREME COURT OF SIERRA LEONE Sc. cw APP. 1/96 I FREDERICK MAX CAREW AND DR. P.K. LAVAHUN

Coram

HON. MRS. JUSTICES. BASH-TAQI HON. MS. JUSTICE S. KOROMA HON. MRS. JUSTICE V.A. WRIGHT HON. MR. JUSTICE M.E. TOLLA THOMPSON HON. MR. JUSTICE SEMEGA-JANNEH JSC JSC JSC JSC JSC APPELLANT RESPONDENT

N.D. TEJAN COLE ESQ. J.B. JENKINS-JOHNSTON ESQ. FOR THE APPELLANT FOR THE RESPONDENT JUDGMENT DATED 215T DAY JANUARY 2010 WRIGHT, JSC- This is an Appeal from the Court of Appeal •

In this1 case the Appellant issued a Writ of Summons on the 26th September 1988 against the Respondent claiming damages for trespass on his land, declaration of title and injunction. On the1 22"d March 1991 the High Court dismissed the case of the Appellant after which the Appellant filed an appeal against the judgment of the High Court to the Court of Appeal. · ·:~ ;. .. . . The Court of Appeal gave judgment in favour of the Respondent confirming the High

. · , · . .. '·· . , ,: .·· ·.- :--. I - ~--:~:, .. · · :. ~ · · ·: .. : · · · ·court judgment on one of the eight grounds of dppcal.

The Appellant being dissatisfied has appealed to the Supreme Court.

4. The grounds of appeal are:-

(1) The Court of Appeal erred in law in that it proceeded on the hypothesis

that the Appellant herein in the Lower Court endeavoured to prove that the Respondent had trespassed upon his land. The Court then wrongly applied elements of or test for Declaration of title instead of trespass to land. The Court of Appeal was wrong in law in that it did not consider at all the claim for a Declaration of title by the Appellant. Instead, the Court of Appeal based its judgment solely on the question of trespass to land whereas the High Court:- (a) Dismissed the claim for DeClaration of Title on documentary

Evidence

(b) Gave judgment to the Respondent for possessory title based partly on documen~ary and party on possessory evidence . Notwithstanding there was oo counter-claim. (c) Did not advert its mind at all or consider any or all the essential elements pertaining to an action for trespass which was also a relief sought by the Appellant . The Court of Appeal was wrong not to have considered and pronounced r whether the learned trial Judge was correct when he declared the Respondent the owner of. the disp~ted~land. It is submitted:- (a) There was no counter-claim by the Respondent to justify such a

Decision

(b) The erroneous .decision was partially based on a supplementary Deed of Conveyance which was not pleaded or for which an amendment of the statement of defence was sought for, granted, .. delivered and filed.

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(5) The Court of Appeal also erred in that it ought to have considered and decided the effect or consequences on:- .· ' · :.", .·· ·_.:;:· .. (a) The admission of, reception and use thereof of the Supplementary

Deed (Exhibit P or Q) when it was purported to have been executed on 13th September 1989 but only registered on 25th September 1989, outside the 10 days permitted by Sub-section 2 of Section 4 of the Registration of Instruments . (Amendment) Act 1964-Act No.6 of 1964.

(b) The correctness, interpretation and application of the Statutory Mandatory Provision of S~ction 12 of the Registration of Instruments Acts, Chapter 256 of the Laws of Sierra Leone, to wit, and Instrument under the Act must have;. on the margin or back, or annexed thereto a plan with description of the land in the Instrument and so signed by the person who made it. .:·. ,· ··· : · . . •.; '' .. · . _:· ,'., ·~ • • . • I : ' o

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(c) The evidence weight to, be given in respect of a recital in a Deed of Conveyance.

(6) The Court of Appeal also erred in that it._did not consider and ought to have decided whether the learned trial Judge was:- (a) Right when it dismissed the case of the Appellant on documentary and possessory evidence. (b) Right to have based its judgment against the Appellant on the strength of the title of the Respondent and not other way round.

(7) The Court of Appeal ought to have reviewed the evidence and to reach its

own conclusion particularly the evidence of the two surveyors. The Lower Court misunderstood the evidence.

(8) That the Court of Appeal ought to have considered the seven other grounds of Appeal by the Appellant. In not doing so, it denied the Appellant of the benefit of a Judgment.

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(9) That the decision of the Lower Court is unreasonable and cannot be supported by the evidence.

(10) That the judgment of the Lower Court is against the weight of the evidence. I feel it is important to set out in extenso the particulars of the Appellant's claim as indorsed in the Writ of Summons and the defence filed by Respondent in answer to the Respondents claim:- (a) The Appellant's claim in ~be High Cou~ was for damages for trespass to the Respondent's land. (b) An injunction restraining the Defe.ndant, his Servants or Agents from trespassing on the Appellants land. (c) For a declaration for the Appellant's title to land in dispute. (d) For a declaration as void an lnqenture of Conveyance dated 26th November 1986 made between Francis Mischeck Minah and Dr. Patrick Kosabi Lavahup (Respondent here) and registered as No. 181 at page 58 In Volume 395 in the Book of Conveyances kept in the office of the Registrar-General, Freetown . •. · ··· .. ,·:.·. _·_ ·. · ... ·. ··The defence filed on behalf of the Respondent is as followed:-

1. The Defendant cannot admit or deny paragraph 1 of the Particulars of the statement of claim and puts the Plaintiff to strict proof of the facts thereof.

2. The Defendant makes no admission with regard to paragraphs 2,7,3 of the said particulars, save that on his return to Freetown after a visit to Bonthe on or about the 24th March, 1988, he received a letter in his surgery signed by the Plaintiff dated 22"d March, 1988.

3. The Defendant says in further rebuttal of the said paragraph that at no time did he instruct any •Jne to work on the Plaintiff's land and that at all material times, the only land he had instructed someone to work on

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z_' was and is his own land, of which he has and is seised in possession and otherwise well entitled by virtue of conveyance No.1818/86 dated 26th November 1986 expressed to be made between the Francis Mischeck

Minah and the said Defendant. The Defendant denies that the Plaintiff contacted him and verbally requested Defendant to stop construction as alleged because such work was being done on the Plaintiff's land.

5. The Defendant denies so much of paragraphs 5 and 6 of the Particulars of Claim that alleges that he and the Plaintiff met with two Police Officers and the Defendant's and Plaintiff's Surveyors on the land belonging to the Defendant and claimed by the Plaintiff, or the B.A. Thomas, a surveyor, or anyone else told the Defendant that the land he was claiming to be his, was the Plaintiff's land or that it was agreed on that occasion or at any dme, that both Defendant's surveyor and Plaintiff's surveyor should get together . and clearly and properly demarcate or locate the respective lands claimed by both Plaintiff and Defendant.

6. The Defendant accepts that what the said B.A. Thomas said was that he was going to ascertain who was the true owner of the said land referred , .. : .. , to and the Defendant also avers that the Plaintiff without his

permission took the said B.A. Thomas, and a second man to the · Defendant's land, and proceeded to carry out certain measurements of

it, without his permission at a time when the Defendant and his surveyor were present on the said land . With reference to paragraph 7 of the Particulars of Statement of Claim, the Defendant admits only to receiving the letter referenced and dated

as alleged.

As to paragraph 7 the Defendant admits that he initiating the building of a permanent concrete structure, but say that the land on which he erected the said structure was his own land as averred in paragraph 3 here and denies that that said land was the Plaintiff's or that he had made any verbal or other agreement with the Plaintiff as to the said land. The Defendant further denies that if he ignored the Plaintiff's said letter, (which is not admitted) he was justified in law to do also as the land belonged to him.

10. The allegation of trespass to the extent of 0.3178 acres or at all by the Defendant himself, his servants or agent in paragraphs 8 and 9 of the Particulars of Claim is denied.

11. Further, and/or in the alternative, the Defendant maintains that the right {if any) to bring the action herein referred to in the Statement of Claim did not first accrue to the Plaintiff within 12 years before the commencement of this action and the Plaintiff's alleged claim was and is barred by the relevant provisions of the Limitation Act, Act No.S1 of

Further, and or in the alternative, the Defendant will rely on the relevant provisions of the said Limitation Act to bar the Plaintiff's clafm in trespass.

13. Save as hereinafter expressly admitted, the Defendant denied each and every allegation in the Statement of Claim as if the same were hereinbefore set out and traversed seriatim . · In giving judgment in favour of the Respondent the learned trial Judge found as a fact that the Appellant failed to establish that the Respondent trespassed on the Appellant's land.

The learned trial Judge concluded as follows:- 23 "The question is: If F.M. Minah who sold co the Defendant did not encroach on "·. . : ... . : .-. . . .. .- ·. ·.· the Plaintiff's land how can the Plaintiff be heard to say that the Defendant has encroached on his land by buying from F.M. Minah? My answer is unless and until the Plaintiff has proved that the place where the Defendant is putting up a building "is not the one sold to him by F.M. Minah, the Plaintiff cannot be heard to complain against the purchase of the disputed place by the Defendant. I pause here to say t·hat the P)ain..tiff's case is far from establishing this important fact and that on this score alone, the Plaintiff claim against the Defendant ought to fail".

When the matter came before the Court of Appeal, E.C. Thompson-Davis J.A. (as he "It is quite easy to see that the, Plaintiff's surveyor was never in a position to apply the principle in the Kwadzo v Adjei case 10 W.A.C. Ap.274 he could not accordingly give a true identification of land or produce accurate plan from the records of the land claimed by the Appellant. In one breath he was saying that Exhibit 9 shows that the property claimed by the Defendant forms part of the Plaintiff's land and in another breath he was saying that according to Exhibit H which he himself prepared, the distance of the Appellant's and Respondent's land was 195 feet". It is apparent that that Appellant did not resist the Respondent's claim for such a i · .:' . . _ : ::::·:,dedaration but the Respondent must satisfy the Court that he is entitled to such a ... ·-.:: . ~ . ':: . .... . .. - . l·- . ,. ~- ; • . . . .- declaration before it could be property made. After carefully considering the various contentions and arguments of the parties I must say that the only problem in this Appeal i:; more the identity of the land of

both parties which I do not find any difficulty in solving it. Webber C.J. in the West African Court of Appeal case of Kodolinye Vodu (1935) 5 WACA 336 said:

"The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the · Defendant~s case. If this onus is not discharged~ the weakness of the Defendant~s case will not help and the proper judgment is for the Defendant. Such a judgment decrees no title to the Defendant~ he not having sought the C.J. Livesay Luke also cited the above in the Seymour Wilson v Musa Abess (Supreme Court Civ. App. 5/79. Judgment delivered 17/6/81 unreported. I disagree with learned Counsel for the Appellant that the Court of Appeal erred in law for failing to consider only one of the seven grounds of appeal. I hold that the

·: _ · ·- .. , '"court of Appeal had every right to consider or.!y one ground if they felt it necessary

to dispose of the appeal. There is no doubt that an Appeal Court can and may, dispose of an appeal on a single ground of appeal if the failure of such ground is sufficient to dispose of the entire appeal. In the Court of Appeal, the disposal of the appeal was rightly based on the failure .of Mr. F.M. Carew the Appellant to discharge the onus of establishing the identity of the land he is claiming which forms the I I fundamental basis of the raison d'etre of all his claims. ' i ,. With the greatest respect to the learned Justice of Appeal it is not sufficient for an . :. Appellant's claim for a piece of land to be supported by uncontroverted evidence to

entitle that Plaintiff to such a deClaration. See (Supreme Court Judgment SC. Civ.

2-S >·· ·. · :: App.7 /2004 judgment delivered on the 16th March 2007 between Sorie Tarawalli

. . ·. ·.· and Sorie Koroma (as administration of the estate of Sorie Mansaray. Quite a lot of cases reviewed by this Court in Macauley v Stafford and Ors (SC. Civ. App. No.l/73) judgment delivered on the 13/7/76, unreported and in the leading authority of Wilson v Musa Abess {Supra) established that in an action for a declaration of title the Plaintiff must succeed on the strength of his title and not on the weakness of the Defendant's title . In a case for trespass all the Plaintiff has to prove is a better right to possession than the Defendant. One way to do this is to show that he has a better title to land .

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According to Livesay Luke in Seymour Wilson case (supra): "But better title in the contest' of an action for trespass is not necessarily "valid' title. In a case for trespass the Court is concerned only with the Relative strengths of the titles or possession proved by the rival claimants. The party who proves a better title or a better right to possession succeeds, even though there may be another person, not a party, who has a better title than he". In my view, there is a misapprehensiqn of the decision of the High Court in so far as there is the understanding that it "gave Judgment to the Respondent (Dr. P.K. Lavahun) for possessory title''. Dr. Lavahun, it must be noted, never claimed or counter-claimed for any relief, or for that matter, a declaration of title; and none was granted by the High Court. The misapprehension seemed to have arisen from the High Court Judge's assessment of the evidence relative to the land of the respective parties by his conclusion; and I quote: "The straight forward evidence given by D.W. 1 (Francis D Davies the Defendant's surveyor) has left me in no doubt whatsoever that

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2b the Defendant is the rightful owner of the property in dispute and that he has a better right to possession than the Plaintiff (Mr. F.M. Carew) who has not established his right to it. In the circumstances, the Plaintiff's case is dismissed with costs" Immediately preceding the above quotation, the High Court Judge in his assessment of the evidence· stated: "I hold that the gaps created in the Plaintiff's case go beyond a mere Failure to prove the Plaintiff's root of titlt: to the p!ace being claimed By the Defendant. In my view, the evidence of P. W. 2 (Mr. Benoni Thomas, the Plaintiff's surveyor) makes the identity of the land in dispute to be in doubt and not definite. I will therefore dismiss the Plaintiff's claim for declaration of title and trespass. I will also dismiss the claim for injunction as well". (Brackets provided) In all of this it can be clearly dis~erned that the High Court Judge ended by dismissing the Plaintiff's claims and case. He was concerned in giving his reasons for

dismissing the Plaintiff's claims and case. At no instance did the High Court Judge grant to Dr. Lavahun (the Respondent) judgment for possessory title or a declaration of title to the land he built upon or any land for that matter. The · ·· judgment dismissed the Plaintiff's claims/case; nothing more. Let me now turn to the identity of the lands of both the Appellant and the Respondent, and the alledged trespass on the Appellant's land. ,. · Both the Appellant and the Respondent gave evidence during the trial. At the trial

evidence called in support of the Appellant's and Defendant's case were the testimony of Allieu Badara a Clerk at the Registrar-General's Office who produced and tendered Exhibit A which was the Conveyance dated 14th August 1980 made

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between Ex. P.C. Yumkella and the Plaintiff Registered as No. 964 at page 63 in Volume 321 in the Book of Conveyance. Certified Copy marked Exhibit B. Exhibit C which was a Conveyance dated 26th November 1986 made between Hon. FranCis Mischeck Miriah and Dr. Patrick Kosabei Lavahun registe.red as No. 1818 at page 58 in Volume