CJ Seymour-Wilson v Musa Abess [1981] SLSC 1 (17 June 1981)

DR CJ SEYMOUR-WILSON v MUSA ABESS SC SUPREME COURT OF SIERRA LEONE, Supreme Court Civil Appeal 5 of 1979, Hon Mr Justice Livesey Luke CJ, Hon Mr Justice CA Harding JSC, Hon Mr Justice OBR Tejan JSC, Hon Mrs Justice AVA Awunor-Renner JSC, Hon Mr Justice SMF Kutubu JA, 17 June 1981

[1] Land – Declaration of title – Onus on plaintiff to prove ownership of land – Documentary

Evidence

Registration of conveyances and statutory declaration insufficient to prove title – Requirement to prove th at predecessor in title had passed good title – Evidence (Documentary) Act (Cap 26) s 3

[2] Land – Title – Registration – Fundamental difference between registration of title and registration of instrument – Registration of conveyancing instrument does not confer or prove title – Title is conferred by the instrument itself – Davies v Bickersteth overruled – Registration of Instruments Act (Cap 256) s 4

[3] Land – Trespass – Requirement to prove better right of possession – Better title may prove better right of possession but not necessarily a valid title – Mere possession sufficient to maintain trespass against a person who cannot show better title

[4] Courts – Re-trial – Court of Appeal should have dismissed appeal and not ordered a retrial where plaintiff failed to discharge onus of proof as to ownership of land – Equivalent to giving plaintiff a second chance – Court ought not advise party on how to conduct its case On 30 April 1974 the plaintiff (respondent) took action in the High Court against the defendant (appellant) seeking a declaration of title to land at Signal Hill, Wilberforce in the Western Area of Sierra Leone and damages for trespass. The plaintiff claimed that he had unchallenged possession of the land since 12 March 1952 and submitted in evidence the deeds of conveyance that were registered with the Registrar General as regards to sale of the land to him in 1952 and the sale of the land between the prior owners in 1951. In March 1974 he discovered that the defendant had erected a building on the land and claimed trespass. In his defence, the defendant submitted that he was the owner of the land by virtue of a deed of conveyance dated 23 March 1968, which was also registered with the Registrar General. On 8 March 1977 Short J, at first instance, dismissed the plaintiff’s claim, finding that the land conveyed to him in 1952 and the land in dispute were completely different parcels of land, and awarded the defendant general damages on the basis that the plaintiff had failed to identify the land with any degree of certainty, had not proved good title and that the defendant was at all times the owner and in possession of the land in dispute. On 25 May 1979, the Court of Appeal allowed the plaintiff’s appeal on the basis that there was insufficient evidence as to whether the dispute related to the same piece of land and remitted the case to the High Court for retrial. On appeal to the Supreme Court, the main issues were whether the plaintiff had proved title to the land in dispute; whether the prior registration of deeds in 1951 and 1952 conferred a better title than the 1968 registration; which of the parties were entitled to damages for trespass; and whether the Court of Appeal was right to order a retrial. Held, per Livesey Luke CJ, allowing the appeal:

1. In in an action for a declaration of title the plaintiff’s case must be based on the strength of his title and not on the weakness of the defendant’s title. The onus is on the plaintiff to prove that he is the fee simple owner of the land in dispute. Dunford v McAnulty (1883) 8 AC 456, Kodilinye v Odu (1935) 2 WACA 336, Mansaray v Williams (1968-69) ALR (SL) 326 and John & Anor v Stafford & Ors (Supreme Court Civil Appeal No 1/75, 13 July 1976) applied.

2. In order to succeed, the plaintiff had to prove that the previous owners had a fee simple title in the land when it was conveyed in 1951, prior to the conveyance to him in 1952. The only evidence produced in support of this were his title deeds and a stat utory declaration as to ownership by the previous owner. There was no attempt by the plaintiff to fulfil the requirements

of s 3 of the Evidence (Documentary) Act (Cap 26) which deals with the admissibility of evidence of a statement made by a person in document tending to establish a fact. Therefore the statutory declaration and the statements made therein were inadmissible. Bright v Roberts (1964-66) ALR (SL) 156 applied.

3. There is a fundamental and important difference between registration of instrument and registration of title. The Registration of Instruments Act (Cap 256) deals with registration of instruments but makes no reference to , and makes no provision for, registration of title. Registration of title is dealt with in the land registry legislative framework.

4. Registration of an instrument under s 4 of Registration of Instruments Act (Cap 256) confers priority over other instruments affecting the same land which are registered later. Registration of an instrument under the Act does not confer title on the purchaser, lessee or mortgagee, nor does it render the title of the purchaser indefeasible. What confers title (if at all) in such a situation is the instrument itself and not the registration thereof. So the fact that a conveyance is registered does not ipso facto mean that the purchaser thereby has a good title to the land conveyed. In fact the conveyance may confer no title at all for example, where the vendor had no title to pass. If two deeds are registered in respect of the same land, one may take effect before the other under s 4, but that does not mean that the prior registered deed confers a better title. The prior registered deed may confer an imperfect title or no title at all. But its prior registration would not ipso facto perfect an imperfect or invalid title.

5. Prior to 1964, registration of instruments was not compulsory in Sierra Leone. It was the Registration of Instruments (Amendment) Act 1964 that made registration of instruments compulsory. There are possibly hundreds of unregistered pre -1964 conveyances. If the construction put upon s 4 by the Court of Appeal in Davies v Bickersteth, was upheld, it would mean that any person taking a conveyance of a piece of land after 1964 from a person having no title to the land and duly registering the conveyance would automatically have title to the land as against the true owner holding an unregistered pre-1964 conveyance. The legislature could not have intended such absurd consequences. Davies v Bickersteth (1964-66) ALR (SL) 403 overruled.

6. In a case of trespass, the plaintiff has to prove a better right of possession than the defendant. One of the ways that he may do this is to prove that he has a better title to the land than the defendant. But “better” title in the context of an action for trespass is not necessarily a “valid” title. In a case of 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 him. But in a case for a declaration of title, the plaintiff must succeed by the strength of his title. He must prove a valid title to the land. So if he claims a fee simple title, he must prove it, to entitle him to a declaration of title. The mere production in evidence of a conveyance in fee simple is not proof of a fee simple title. The document may be worthless. As a general rule the plaintiff must go further and prove that his predecessor in title had title to pass to him. If there is evidence that the title to the same land vests in some person other than the vendor or the plaintiff, the plaintiff would have failed to discharge the burden upon him. As there was no evidence that the vendor in the 1951 conveyance was the fee simple owner of the land, the plaintiff’s claim for a declaration of a fee simple title failed. Ocean Estates Ltd v Pinder [1969] 2 AC 19 distinguished.

7. Mere possession is sufficient to maintain trespass against anyone who cannot show a better title. The plaintiff had proved possession from about 1964 or 1965 and defen dant had proved possession from January 1967. Therefore, the plaintiff had proved better possession and the defendant was liable to the plaintiff in trespass and was entitled to Le500 in general damages. Bristow v Cormican (1878) 3 AC 641 applied.

8. The fact that the Court of Appeal could not determine whether the dispute related to the same parcel of land meant that the plaintiff had failed to discharge the onus on him. In these circumstances, the court should have dismissed the appeal and not ordered a re-hearing and, in

effect, given the plaintiff a second opportunity to discharge the onus which he had failed to discharge in the first place. Furthermore, the Court of Appeal ought not to expressed its opinion that the plaintiff seek evidence from the Director of Surveys and Lands. It is not the business of the court, especially in a civil case, to give the parties gratuitous advice as to how they should conduct their cases or what witnesses to call. Otherwise the impression might be created that the court is taking sides in the dispute instead of holding the scales evenly which is its proper role. There was sufficient material before the Court of Appeal to determine the issues one way or another and the order for a re-trial was wrong. Kodilinye v Odu (1935) 2 WACA 336 applied. Cases referred to Benmax v Austin Motors Co Ltd [1955] 1 All ER 366 Bright v Roberts (1964-66) ALR (SL) 156 Bristow v Cormican (1878) 3 AC 641 Cole v Cummings (No 2) (1964-66) ALR (SL) 164 Davies v Bickersteth (1964-66) ALR (SL) 403 Dunford v McAnulty (1883) 8 AC 456 El Nasr Export and Import Co Ltd v Mohie Eldeen Mansour (Supreme Court Civil Appeal No 3/73, unreported, 25 April 1974) England v J Mope Palmer (1955) 14 WACA 659 John & Anor v Stafford & Ors (Supreme Court Civil Appeal No 1/75, 13 July 1976) Kodilinye v Odu (1935) 2 WACA 336 Mansaray v Williams (1968-69) ALR (SL) 326 Ocean Estates Ltd v Pinder [1969] 2 AC 19 Performing Right Society Limited v London Theatre of Varieties Limited [1924] AC 1 Portland Managements Ltd v Harte [1976] 2 WLR 174 Watt (or Thomas) v Thomas [1947] AC 484 Legislation referred to Evidence (Documentary) Act (Cap 26) s 3 High Court Rules O XII r 11, O XVIII r 20 Land Registration Act 1925 [UK] Land Registry Act 1862 [UK] s 20 Land Transfer Act 1875 [UK] Land Transfer Act 1897 [UK] Law of Property Act 1922 [UK] Limitation Act 1961 Middlesex Registry Act 1708 [UK] Registration of Instruments Act (Cap 256) s 4(1),

(2) Registration of Instruments (Amendment) Act 1964 s 2 Rules of Court 1875 O XIX r 15 [UK] Yorkshire Registries Act 1884 [UK] Appeal This was an appeal against the decision of the Court of Appeal on 25 May 1979, which set aside a decision of the High Court awarding damages to the defendant in a land dispute, and instead ordering a retrial. The facts appear sufficiently in the following judgment of Livesey Luke CJ. Dr VS Marcus-Jones & Mr Garvas J Betts for the appellant. Mr JW Davies and Mr Luseni Massaquoi for the respondent. LIVESEY LUKE CJ: This appeal concerns the ownership of land at Wilberforce in the Western Area of Sierra Leone. By writ of summons dated 30 April 1974 and issued in the High Court by the respondent herein (hereinafter called the plaintiff) against the appellant herein (hereinafter called the defendant) the plaintiff claimed: (i) declaration of title to land situated at Signal Hill, Wilberforce in the Western Area of Sierra Leone and bounded on the north by private property 210 feet, on the south by a private property then or previously in the possession or occupation of JBS King 210 feet, on the west by an access road to Aberdeen 66 feet, and on the east by Signal Hill Road 80 feet; (ii) an

injunction restraining the defendant his servant or agent from erecting a building on the land and (iii) damages for trespass. Pleadings were filed in due course. It is not necessary to set them out. A summary of the salient issues raised therein should suffice. In the statement of claim the plaintiff pleaded inter alia that the land was conveyed in fee simple to one Assad Joseph Yazbeck by one Gershon Theophilus Cole by deed of conveyance dated 28 June 1951 and duly registered in the Books of Conveyances in the office of the Registrar General; that by deed of conveyance dated 12 March 1952 and duly registered in the office of the Registrar General the said Assad Joseph Yazbeck conveyed the land to him in fee simple; that since 12 March 1952 he had been in open and unchallenged possession of the land; that in March 1974 he discovered that the defendant was trespassing on the land by erecting a building thereon and that notwithstanding several requests and demands the defendant persisted in trespassing on the land. The defendant filed a defence and counterclaim. In his defence the defendant inter alia denied that he had trespassed on any land belonging to the plaintiff; averred that he was the fee simple owner of the land in dispute by virtue of a deed of conveyance dated 23 March 1968 and expressed to be made between one Ellis Leslie England as vendor and himself as purchaser and duly registered in the office of the Registrar General; pleaded the Limitation Act 1961 and alleged that the plaintiff had interfered with his possession of the land and had obstructed his building operations thereon. In his counterclaim the defendant claimed special damages for loss a result of the plaintiff's obstruction of his building operation and general damages. The plaintiff filed a reply and defence to the counterclaim. In the reply the plaintiff denied the several allegations in the defence and joined issue with the defendant. In the defence to the counterclaim the plaintiff inter alia alleged that the defendant did not acquire any valid title from Ellis Leslie England and also pleaded the Limitation Act 1961. The trial was by Short J (as he then was). The trial lasted several days and both parties were represented by learned counsel. Each party gave evidence on oath, called witnesses including surveyors and tendered documents including maps and their respective documents of title. The learned judge delivered judgment on 8 March 1977 dismissing the plaintiff's claim and awarding the defendant Le1000 as general damages. In dismissing the plaintiff's claim the learned judge after reviewing the evidence found “as a fact that the plaintiff has failed to identify with any degree of certainty the land that he bought from Assad Joseph Yazbeck as being the land claimed by the defendant and also held that the plaintiff had “failed to prove that Gershon Theophilus Cole had a good title to pass to Assad Joseph Yazbeck” and that therefore Assad Joseph Yazbeck could not have passed a good title to the plaintiff. In deciding in favour of the defendant the learned judge said inter alia “It is manifestly clear that two completely different parcels of land are involved. I find as a fact that the defendant is, and was at all times material to this action, the fee simple owner and in possession” of the land in dispute. The plaintiff, being dissatisfied with the decision of Short J, appealed to the Court of Appeal. The appeal was heard by the Court of Appeal (consisting of SB Davies, Ken During and CS Davies JJA) on 9, 10 and 11 May 1978. Both parties were represented by learned counsel. The Court of Appeal delivered judgment on 25 May 1979 allowing the appeal, setting aside the judgment of the High Court and remitting the case to the High Court for a retrial before another judge. In their judgment the Court of Appeal said inter alia: “We have experienced considerable difficulty owing to the absence of any clear evidence as to whether the contention between the parties relate to one and the same land. That is the first point on which a c ourt has to satisfy itself before it can consider other matters. We would have thought that in a situation like the present one evidence from an independent source like the Director of Surveys and Lands was desirable. It was absent.” It is against that decision that the defendant has appealed to this court. The plaintiff has also filed a notice of cross-appeal. The issues raised in this appeal and cross-appeal may be summarized as follows:

1. Do the plaintiff's title deeds relate to the land in dispute?

2. Did the plaintiff prove title to the land, and is he entitled to a declaration of title to the land?

3. Who is entitled to damages for trespass to the land – the plaintiff or the defendant?

4. If trespass was found in favour of the plaintiff, what amount should be awarded by way of general damages?