Dr. Raymond S. Kamara V Virgina Ayo Davies (CIV 22 of 2007) [2009] SLCA 6 (18 June 2009)

is CIV. APP. 22/2007 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: DR. RAYMOND S. KAMARA APPELLANT AND VIRGINIA AYO DAVIES (On behalf of herself and As Headwoman ‘Of the GRAFTON COMMITTEE) 1 RESPONDENT AND CHARLES E.WALLACE (On behalf of Himself and as Secretary of the GRAFTON VILLAGE COMMITTEE) 28° RESPONDENT, AND . GRAFTON VILLAGE COMMITTEE. 3*° RESPONDENT,

Coram

HON. MRS. JUSTICE S, BASH-TAQI, JSC, (Presiding) HON. MS JUSTICE $, KOROMA, JA. HON MR JUSTICE E. E.ROBERTS, JA. Barristers i S.M. Sesay, Esq. of Serry-Kamal & Co. J.B. Jenkins-Johnston of Jenkins-Johnston & Associates JUDGMENT DELIVERED ON THE _18™" DAY OF JUNE 2009 BASH-TAQI,JSC: © This is an appeal from an Order of the High Court (Showers J) dated 22" May 2007, sxanting an application by the Respondents, who were Defendants in the High Court action, to set aside a Judgment dated 21" December 2004 obtained against them in default of appearance and leave to defend the action in the Court below. BACKGROUND * The matter arose in this way. The Appellant had issued a Writ of Summons dated 26" ‘August 2004, against the Respondents claiming, inter alia, a Declaration of ttle to two pieces of land situate lying and being at Grafton Village Western Area of Sierra Leone, and damages for trespass. In his Particulars of Claim, the Appellant, then Plaintiff, : alleged that he bought one piece/parcel of the land from one Charlotte Cole of Main Motor Road Grafton, and the other parcel of land from Charlotte Cole and Adolphus

Bz 7 Huzzy respectively, both of Grafton Village. The said sale was evidenced by Conveyance dated 26" April 1977 registered as No. 429/77 in Vol. 292 at Page 74 and Conveyance dated 30 October 1978 registered as No. 968/78 in Vol. 304 at page 98 of the Books of Conveyances in the Office of the Administrator General Freetown respectively. He claimed to have been in possession of the said land since purchase without any challenges } made to his ownership thereof. In 2004, the Respondents formed themselves into a ‘Committee, which they called “The Grafton Village Committee” (i.e. The 3" Defendants herein) and through this Committee, interfered with and trespassed on the Plaintiff's said lands. On the 28 September 2004, the Respondents, (then Defendants), entered a Conditional Appearance to the Writ of Summons. They did not file a Statement of Defence within the time limited for delivering a defence. By letter dated 1* November 2004, the Appellant's Solicitors wrote to their Solicitor reminding him to file a Statement of Defence; and giving him five (5) days, (ie. up to 5 November 2004) within which to do so. They failed to comply. On I* December 2004, almost one month after that etter, and two months after the time allowed for filing a Defence, the Appellant's Solicitors took out a Motion for judgment, seeking that Judgment to be entered against the Respondents upon his Statement of Claim, The Learned Judge, (Showers, J) entered Judgment for the Appellant accordingly ‘on 21% December 2004 in the following terms: ~ 1.°A declaration thatthe Plaintiff isthe fee simple owner and person entitled to possession of those two pieces of larid delineated in survey plans numbered LS513/77 dated 12" April 1977 and LS657/78 dated 6 May 1978.

2. Damages for trespass against the defendants assessed at Le 1,000,000.00.

3. Damages for malicious damage against the defendants assessed at Le

4. A perpetual injunction is granted against the defendants jointly and severally . restraining the defendants jointly and severally from entering or remaining on the plaintiff's pieces of land and from interfering with the plaintifP's use and enjoyment of his property.

5. The sum of Le 1,650,000.00 is awarded against the defendants in this action.” BY letter dated 30" December 2004, the Appellant's Solicitor wrote to the Respondents asking them to Vacant the land pursuant to the said Judgment. They did not. The Appellant's Solicitors then issued a Combined Writ of Possession and Fieri Facias ’3n 11" March 2005, to recover possession of the said land and the sum of Le 4,650,000.00 damages awarded by the said Judgment. The Respondents failed to vacate x the property; and on 17 February 2006 the Appellant applied and was granted leave to issue out Writs of Attachment and contempt of Court against the Respondents, patticularly Virginia Ayo Davies, Kebbie Sesay, Mohamed Sesay, Brima Sesay and

; Sigismond Carew, for their failure to adhere to the Judgment. The Writs were returnable on Friday 24" February 2006. There is no record of what transpired on 24" February

< On 26" March 2006, Brewah & Co. entered an appearance tonthe Writs of ~ Attachments/Committal on behalf of the Respondents. On 1* November 2006, Jenkins- Johnston & Co, Solicitors entered an Appearance to the Writ of Summons for the Defendant, Kebbie Sesay. On 15! January 2007, due to their inability to pay the Judgment debt, the Appellant applied for the Defendants (Respondents) to be examined as to their means. On 12 February 2007, the 1* and 2" Respondents appointed the firm of Jenkins-Johnston & Co. Solicitors to act for them as Solicitors in place of Brewah & CO. On 14" February 2007, Jenkins-Johnston & Co on behalf of the Respondents, took out a Motion praying for an Order that the Judgment entered in default of appearance on 21" December 2004 and execution thereon be set aside for irregularity; alternatively, that the said Judgment and all proceedings be set aside and that the Respondents be granted leave to defend the action on the merits. Affidavits in Support of the application were filed ‘exhibiting a proposed Defence and Counterclaim, There are averments in the Affidavit in ‘Support sworn to by the I Respondent on 14" February 2007, which read inter alia

) "That I was lawfully and regularly elected Headwoman of the Village on the 21" day of September 2003 by the People of the Village, and in that capacity I am responsible to seek the welfare of the people of the village, and to deal

: ‘with complaints brought by them to me.

(4) That some time in 2004 I received a complaint from several people in the village that the Plaintifi/Respondent had on several occasions gone round the village threatening the people of the village that he had bought the whole village and would deal with any one who opposed him.

(5) That upon investigation I found that the Plaintiff/Respondent has caused some

Z 17 Acres of Land right across the Village to be surveyed in his name, and that ‘Two

(2) Conveyances had also been prepared in his name. () I know as a fact that neither CHARLOTTE COLE nor ADOPHUS HUSSY owned 17 Acres of Land at Grafton Village and therefore could not pass title for such land to the Plaintiff/Applicant. After hearing arguments, the Motion was allowed. The Leamed Judge, Showers J, in giving her Ruling on 22" May 2007, had this to say on the issue of the Statute of ‘Limitation raised by the Appellant's solicitors in his arguments, which issue formed the

basis of her conclusions on the application It reads: ~ “Counsel for the Plaintiff has submited that the defendants" claim is now stale and statute barred in that the plaintiff has been in possession of the said land for

~ 30 years now. Let me state that for the claim to be statue barred, the action must be for recovery of land. Here the defendants are not claiming recovery of land but have claimed that the plaintiff's predecessors in title have (not) got the relevant title to pass and have counterclaimed for the cancellation of his conveyance, With respect.to,counsel for the plaintiff on that basis I ds not think their claim is state + fo statute barred.......1..0«They have exhibited a defence which to my view discloses triable issues. I believe they ought to be given a chance to put their case before the court particularly as this matter relate to the issue of land and pertain to land in a small community." (See page 219 of the Records) ‘The Leamed Judge then made the following orders: ~ “1, That the Judgment entered against the Defendants/Applicants herein on the 21 day of December 2004 and all subsequent proceedings be set aside;

2. That the Defendants/Applicants herein do file and serve their Defence and Counterclaim within 5 days from the date hereof.

3. That the Plaintiff/Respondent do file a Reply and Defence to Counterclaim within 7 days from the date of service on him of the said Defence and Counterclaim.

4. That the proceedings do take their normal course thereafter;

6. That the Defendants/Applicants pay the Costs thrown away.” On the 27" June 2007, the Court granted the Appellant leave to appeal to this Court against the order setting aside the Judgment of 21 December 2004; further proceedings were stayed pending the hearing and determination of the Appeal and this is the appeal that is now before us. -There are five Grounds,of Appeal recorded at pages 221 ~223 of the Records; they read: “1. ‘That the decision is against the weight of the evidence.

2. The Leamed Trial Judge acted on wrong principles of law when she held that the defendants have a defence on the merits

3. The Leamed Trial Judge failed to consider adequately or at all that the Conveyances' were dated 26" April 1977 and 30" October 1978 respectively and that the Appellant herein had been in continuous possession of those two pieces of land since April 1977 and October 1978 respectively and that any Sh claim the Respondents may have had was already statute barred atthe time the action commenced against the Respondents. (See Limitation Act 1961). ~

4. The Learned Trial Judge failed to consider adequately that the first Respondent's husband witnessed the payment of part of the purchase price to

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