Dr. Joseph Moi v Koffie Collin Macauley (29 of 2020) [2021] SLCA 13 (21 January 2021)

“s civ.app 29/2020 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN DR. JOSEPH MOI & ANOR. : APPELLANTS . AND IMR. KOFFIE COLLIN MACAULEY : RESPONDENT

Coram

HON. MR. JUSTICE REGINALD S. FYNN J.A. (PRESIDING) HON. MRS. JUSTICE JAMESINA EL. KING LA HON. MR. JUSTICE SULAIMAN A. BAHLA. counset: T- KELLY €50.~ APPELLANT JM. JENGO ESQ- RESPONDENT a supemenr beivereD THIS [Q DAY OF JANUARY 2021

Background

1. This matter relates to property situated at Laka inthe Western Area of the Republic | ‘of Sierra Leone. Mr. Koffie Colin Macauley, the Respondent herein who was Plaintiff inthe court below, instituted an action on 9" August 2011 against Mr. Samuel Johnson | (Snr) and all other trespassers unknown for a declaration that he is the fee simple owner of the said property measuring 0.9244 acres situated at Off Peninsula Circular Road Sandima Fakal, Lakka, damages for trespass, recovery of the land and other consequential reliefs stated therein. His claim was based on a Deed of Giftin his favour dated 2% October 2007 duly registered as No. 319/2007 in Volume 107 at page 3 of | the Books of Conveyances kept inthe Regstrar-Generat's Department in Freetown.

2. Appearance, defence and counterclaim were filed on behalf of the defendant Mr. Samuel Johnson. He counterclaimed for a declaration of ttle ofthe land situated at | Lakka Fakai, Peninsula Road Lakkaas the property ofthe Johnson Family based on two registered Statutory Declarations dated 11" August 1975 and 17 July 1978 respectively as set out on L.S. 897/75 covering 0.5379 acres; L.S. 894/78 covering an area of 2.307 acres; LS. 1262/88 covering 5.5673 acres and 1.6665 acres. The defendant's counterclaim also included a claim for recovery of possession of any part x of the said land occupied by the plaintiff and an order that the said conveyance of the

z plaintiff be cancelled. There was no appearance or defence for any of the other Unknown trespassers

3. The Respondent herein, the plaintiff in the lower court filed a reply and defence tothe defendant’ counterclaim. In his defence tothe counter-laim the Respondent stated inter alia that his root of ttle is linked to that of the Johnson family of Lakka and ‘maintained he is a “bona fide purchaser” for value without notice. *

4. Directions for trial were issued on 10” February 2012 which the parties complied with and the court bundle prepared for trial dated 10" October 2013. Trial commenced | and in midstream the parties negotiated a settlement. At page 247-248 of the Court | of Appeal Records, is a document dated 15* February 2019 titled minutes of consent ‘order signed by both the plaintiff therein the Respondent herein and Samuel Johnson asserting the Respondent's ownership ofthe said land as per his Conveyance earlier referred to and the Respondent will py to the defendants the sum of Le20,000,000 | being the sum negotiated and agreed between the parties with respect to the | settlement ofthe matter.

5. On 29 May 2019, a Judgment adopting the minutes of the consent judgment was adopted and delivered in favour ofthe Respondent herein and the court ordered that hhe was entitled to ownership of the said land as per his conveyance, that the

| defendants give up possession on the said property and the Respondent herein | recovers vacant possession of the same, that he is at liberty to issue a Writ of Possession, that the Respondent pays tothe Defendant the sum of Le20,000,000 being the sum negotiated and agreed between the parties with respect to the settlement of | this matter and that the Defendant abandons his counter-caim in this action. This | ruling was made pursuant to Notice of Motion referred to therein and both Counsel for the parties were heard before the orders were made. A writ of possession was issued on 164 March 2020 and executed thereafter.

6. The Appellants herein, caused to be filed on ther behalf an ex-parte notice of motion } in the High Court dated 29° July 2020, applying for leave to issue a Summons for an | order for them to be added as defendants in the action and for an interim stay of execution of the said judgment or ruling dated 29 May 2019. In the affidavit supporting the application the Appellants herein claim to be bona fide owners of a portion of the said land in dispute by virtue of a Deed of Conveyance dated 9" July . 2019 purchased from the Johnson family. The Appellants further stated that at no time 4id.the plaintiff who isthe Respondent herein or his Solicitors make any attempt to bring the action to their knowledge or other parties affected, even though he was aware that they were owners of a piece ofthe land, and had never objected to the erection of their building, until its total completion. |

7. They further complained that Samuel Johnson without their consent and that of the other joint owners /vendors purported to sign a Minutes of Consent Order on behalf of himself and all other trespassers unknown, knowing quite well that his authority in that action was limited to representing himself. According to the said affidavit, the Respondent herein filed a Writ of Execution and has claimed lands owned by third e parties who have not been accorded an opportunity to defend themselves or have their ttle tested, neither consented or instructed Samuel Johnson to sign on their

4 behelfond tha to allow him to continue this conduc, wl in effect defeat the course of justice and the opportunity to hear from other interested parties. Pictures of the demolition of the Appellant house were exhibited and it was stated thatthe repairs to the same will cost the sum of Le340,000,000 (Three Hundred and Forty Million Leones) ‘8. On 30" July 2020 the High Court delivered a ruling granting the Appellants leave to be * added as Defendants provided they can obtain an order from the Court of Appeal to reverse the order dated 29" May 2019 on terms the court may deem fit and just. In addition it was ordered that n the alternative, the Appellants are at liberty to bring an | action seeking to be indemnified by the Defendant and including the Respondent | therein as Defendant and that meanwhile common sense dictates that the Plaintiff | herein observes 2 moment of cease fire until this issue is resolved on its merits toavert undesirable consequences in due course. |

9. Having in effect refused their application for an interim stay, the Appellants filed an | appeal to this court dated 4" August 2020 and a notice of motion dated 4" August 2020 in this Court, asking for inter alia a stay of execution of the orders of the High | Court. A stay of execution was granted by this Court on 6% August 2020 pending the | hearing and determination of the Appeal. |

410. The Respondent gave notice of a preliminary objection to the hearing of the appeal pursuant to Rule 19 of the Court of Appeal Rules 1985 and asked the Court to strike | ut the Appellants appeal filed on 4 August 2020 on the grounds of non-compliance with the Court of Appeal Rules; that this court lacks jurisdiction to hear and determine same as there was no matter with the present ttle determined in the High Court and | that the Appellant lacks locus and status to seek the reliefs prayed for in the appeal . | THE APPEAL | 11 The Appellants being dissatisfied with the decision of the High Court contained in the Judgment of Hon Justice Musw D. Kamara JA. dated 30" July 2020 has appesled to | this Court upon the following grounds: | “1, Misdirection/misapplication of the law as to the exercise of the discretion | conferred by {Order 18 Rule 12(3)] of the 2007 High Court Rules of Sierra Leone | a. Substantively, the Learned Judge having correctly interpreted the provisions | mentioned, in paragraph 1 above and accordingly granting the Applicant/Appellant leave to be added’ as a party to the Respondent/Respondent's action provided that the Appellant can obtain an order from the Court of Appeal to reverse the order dated 29 May 2039, then ! refused to grant an interim stay ot the said order pending the hearing and determination of the Appellant's appeal to the Court of Appeal, thereby making the appeal otiose inthe event of the Respondent executing the order made consequent upon an alleged agreement between one co-owner and the Plaintiff without any opportunity being afforded to the Appellant, described in cS the Plaintiff's Writ of Summons as trespassers unknown, to be added as Defendants to defend the Respondent's action. Instead the Learned Judge

> offered the Appellant the alternative of liberty to bring an action seeking to be indemnified by the Defendant in the action Mr. Samuel Johnson and the Plaintif therein without any consideration of the abilty of either to indemnity the Appellants, who stood to lose property worth over $300,000 in the event of execution of the order aforementioned.

bb. The refusal to grant an interim stay in the circumstances narrated in paragraph (a)

, above was an unreasonable exercise of discretion, in that the Learned Judge took no account of the effects and purport of the substantive rules, [namely r7(1), (2)

| and 3] of the High Court Rules 2007, or if she did, the refusal was not based on law."

|

12. The Appellant fled adaitional/supplemental grounds of appeal as follows:

“c. The Learned Judge was wrong inlaw to give the Respondent liberty to issue a Writ | of possession to enforce the judgment appealed without any proof or evidence that | the Appellants, who were in actual occupation of the whole of the land had received

‘such notice of proceedings as appears to the court sufficient to enable them to apply

to the court for any relief to which they may be entitled, 2s provided by Order 46 Rule

3 (3) of the High Court Rules of Sierra Leone. The error is more glaring when it is | ‘considered in paragraph 2 of the Judgment the “defendants” are enjoined to give up

| vacant possession of the property the subject of the dispute and that the Plaintiff recover possession, which implies that the Plaintiff or the judge or both were aware of the “persons being in actual occupation” of the land, yet permission was given to issue the Writ of Possession without any evidence that they received notice of the | proceedings as required by the Rules.

4. The Learned Judge equally fell into error of law in giving the judgment on the basis of the consent of only one of four joint tenants, who, as a matter of law, could not have validly an lawtully signed away the beneficial interests of the other co-owners | Unless they expressly consented to his doing so it being trite that a trust is mandatory | for co-owned property with the co-owners holding the legal estate upon trust for themselves and their beneficial interest existing behind such trust. The Learned Judge had no evidence before her of the agreement of the other co-owners to Mr. Samuel Johnson the sole signatory, to disposing of their beneficial interests in the manner set | ‘out in the consent order/iudgment. €. In the premises, their Lordships are asked to reverse the judgment of Hon Justice IMusu D. Kamara dated 29" May 2019 and leave given to the Appellants to defend the action in the court below.” |

413. It is against both court orders of 29% May 2019 and 30" July 2020 that the Appellants herein are seeking to set aside as execution of the judgment affected their property and they hhad no notice of the action neither were they given any opportunity to defend the same. The issue for determination is whether the Appellants are entitled to have this Court set aside 5 both decisions of the High Court

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