Dumbuya Fallah v Moseray Kamara (CIV APP 73 of 1981) [1984] SLCA 1 (20 January 1984)

vy Civ. App. 73/81 IN THE COUR? OF APPEAL #OR SIERRA LONE CORE . HON. MR JUSTICE S.c.E. WARNE - Sea. - HON. He SUSZICE 3.2. Havo - Tea. HON. HR JUSPICE 3.ti.e. KUEUBU - dea BURA: DUNBUYA PaLLal - AbPELLAN? . aD HUSERAY Kalai = RASAONDENT Di. WM. JOKO=SHARY FOR APPELLANT chal He SAVaGS SQ. 2OR RESPUNDENT GUPGEANT VELIVENMD Tig 207K Da¥ Us JANUARY 1984 ' MaAvVO, Joa. . @his appeal arises from the judyment of Thompson-Davis, J (as he then was) delivered on the 10th June 1981. I have had the advantage of reading in print the judgment that has just been delivered by my learmed brother Warne, Je. and it is with regret that I have to disagree with his conclusion, and I do so with utmost respect. ‘fhe appellant's grounds of appeal are set out in the judjment of Warne, J.A. I therefore do not find it necessary to repeat them herein. I however find it expedient to set out in full the plaintift/ appellant's amended statement of claim and the defendant's: defence filed. "AMENDED STARUHENT OF CLAIN: "4, whe Plaintiff at all times material to this action was . and still is joint fee simple owner in possession of all that piece or parcel of land situate lying and known as Robis near @alaba Town in the western Area of Sierra Leone ' . having inherited same jointly with his younger "brother ° yomboli #allah from their father the late Ansumana Kompa - : who died sone 40 years ago owning and being in possession a . of the said land. Whe gaia piece or paroel of land is 4 tee eee SO J

‘> At o- 14 delineated on Plan L.8. 1823/77 attached hereto and forus part _of this Statement of Claim.

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2. "Sometime in 1972 the Defendant wrongfully and unlawfully entered and has since persisted in entering part of the Plaintiff's land aforesaid and claimed approximately : 0.615 acre of the said land and purported to sell portions thereof and on each occasion has so entered without the permission and against the will of the Plaintiff.

3. "The Defendant also wrongfully and unlawfully built a hut > on the Plaintiff's land aforesaid without the consent of permission of Plaintiff and/or his brother, the said Bomboli Falla. 4, ""Bhe Defendant still persists in the acts of trespass.

5. "fhe Plaintiff, therefore, claims:-

(4) Declaration thut all that ‘piece or parcel of land situate lying and known as Robis, Calaba Town in i Western area of Sierra Leone now occupied by the Defendant and portions whereof the Lefendant has unlawfully sold is the property of the Plaintiff." (ii) Recovery of possession of the said land. . (444) an injunction restraining the Defendant hig™servant or agent from interferring with the said land. (iv) Damages for trespass. (v) Mesne Profits. (vi) any further or other relief that may be just." "puFince™ .

1. The Defendant denies paragraph 1 of the Plaintiff's Statement of Claim. .

2. In answer to paragraphs 2 and 3 the Defendant denies the allegation herein.” t . se cee/Be

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"Be The Defendant further denies paragraph 4 of Plaintiff's Statement of Claim. - "he Whe Defendant aguin denies paragraph 5 of the Plaintiff's utatenent of Claim. "Se Save ap herein before expressly admitted the Defendant . specifically denies each and every of the other, allegations contained in the Plaintiff's Gtutement of Claim Seriatin." . It is therefore quite cleur frow the pleadings that the Defendant offered no defence to all the averments in the statement of claim : other than a general denial of every statement of fact without setting them out and denying them specifically as is required by the rules of pleadings. ven the Plaintiff's Claim for relief is denied. . The case went to trial on the above pleadings. The plaintiff/appellant called three witnesses (including himself) in support of his claim. In his evidence the plaintiff deposed that he was now over sixty years of aye and was born on the land . known as Kobis in respect of which he instituted this action and over since lived on it. ile deposed that he and his brother Sockarie Bomboi Fallah, inherited it from their father Salami | Kompa who died about forty years ago. iis father alsésinheritea | it from his (the appellant's) grandfather one Kompa Bomboli. | All throughout this period he had lived on this land except when he got ill in 1972 and went away and returned later. It is not in evidence the exact date he returned, but when he did so, he saw respondent on his land, who had built a house of C.I. Sheets. He said that he did not give permission to respondent .o go on his land. He reported the matter to one Homoh Kargbo, ileadman . of Ualaba Yown who summoned respondent before him, hen the headman asked why he had gone on appellant's land respondent told the headman that the land was piven to him by one Foday of : -~ had ‘

a . 4b wellington, The headman asked that Foday be brought to him but neither Foday, nor his wife, nor his son were brought by the respondent, he Headman then warned respondent that the

° : land in dispute belonged to appellant and that he the respondent must get out of it. On respondent refusing to do so appellont instituted action against him in the High Court in 1976.

While this case was in court appellant and his brother Bockurie allah prepared a Statutory Declaration for the land. One allie Conteh and one alimamy Conteh witnessed the document testifying to the truth of the contents. ‘he document was put in evidence (unchallenged) as exhibit 'A'. ’

Bockarie Bomboli Yallah the brother of the appellant also gave evidence corroborating that of the appellant and added the appellant had his authobity to sue for the land.

The, teadman of Calaba Town, Nomoh Kargbo next gave evidence, In his evidence he said,that he knew the land in dispute and .

. that it belonged to appellant. That in 1978 the appellant : complained to him that respondent had gone into his land, The headman said that he himself went to Calaba ‘town in 1934 about (50 years ago) and found respondent on the land. The Meadman said:

"I told Moseray that the land was owned by plaintiff and

that he should leave it, as he owned no land in that area.

He refused to leave, plaintiff came back and complained.

I then advised him to go to court. .

Plaintiff then took defendant to the C.I.D. to get hin

to leave" all throughout the trial respondent was represented by able counsel whose cross-examination I would say, with respect, was

* not directed to the issue before the court nor even suggestive . that the land belonged to respondent or that he did not trespass or built on the land as alleged. fe gave no evidance nor called eny witness. Not even Voday the alleged vendor to him was

Called to give evidence or made a party to the acy; ion

In effect no legal defence was filed, only a general denial of ’ everything in the statement of claim - nor did he defend the action at tne rial, outside irrelevant cross-exumination, | Hlowever, at the close of the plaintiff's case the learned | - tyial judge in his reserved judpment dismissed the action and . vojeeted the claim. As I have said e:rlier I have had the previledje of reading in draft the judgment of my brother Vame, J.A. whish max he has just read dismissing the appeal and affirming the judment of the learned trial judge. It is with utmost respect that I disagree : with my brother Wame, J.A. as I do with the learned trial’ judge, the principles poverning dedlaration of title to mmx land and trespass have been fully and uost acholarly discussed by the Jupreme Court of Sicrra Leone in the judgment of the learned Unief Justice #. Livesey Luke in Civeapp.5/79 Dr.U.J. seymouy Wilson Vs. Husa Abess dekivered on the 17th June 1981 (yet unreported) a pescage from which is very relevant and apposit to tjis case, and wich 1 quote: " eceeeee, it is a matser of common knowledge that most of the lands in the westerm area outside the City of ireetow are ba:ed on possessory title and most of them are not . covered by title deeds. That situation is the result of the history of land holding established in She Western Area about two centuries ao. The system which has been in operation in the Western Area since the founding of the Colony (now the Western Area) is that land passes within the same family from one yeneration to another in many cases without te existence of any document of title. Does the mere registeration of a Deed conveying any such land confur title on the purchaser as a,ainst the true owner who may Lave an indefeasible possessory title but no document of ~ titles" "Indeed the courts in sierra Leone have on innumerable occassions dediddd in favour of owner of a possessory . title without documents of title as ayainst tie holders of . ‘ reristered Conveyance. see for exanple ole ¥. Cummings Serre y A)

oo -6- 7 cn ° (1.0.2) (1964-68) ALR. (G.3.) 194. vor example , "oxauple of cases where the rival uibles were based on possessory non-docunentyry titles. ee llmsary v. Willians (supra) and Jolin & Macauley v. Staffor! & ors. (supra)." . Ice not only feel loyally vound by this expositeon of law but also entirely ayree with, and adopt it in this judiment. Whis same View was held in the case Cottrell v. Watkins (1834) 7 Beav. 361 at 205 cited by my brother wames d.a. as foiiwmx follows:, "Jhere are good titles in which the origin cennat be shown by any deed or will; but then you must shoW........ that there has been such a long uninterrrupted possession, enjoynent and dealing with the property as to afford a reasonable presumption that there is an absolute title in ree simple". see diliiams on Title - Ond edition 570 In this case quite apart fron exhibit 'A', the Statutory vealuration the appellant and tvo other witnesses gave oral evidence on Oath to the efvect that the appellont inherited the land delineated in plen attached to exiibit A feom his father who also inherited it fvom his own futher, over 40 years, the Headman Nowoh Kargbo putting it as from 1934 when he came to Kalaba Zown and met the appellant on the land in question, It was only in 1972 when appellant fell i11 and went away and on his return he found yespondent on his land. The evidence of all thesé witnesses went | uncontroverted aud unchallenyed on all material points. what more evidence is required of appellant to establish title to that land, = - rad of long and uninterrupted possession thereof in view of the two passases cited above. ‘Ine courts would be setting a dangerous and unrealistic standard of proof of title to land outside the original ireetown Municipality where the question of Title Deed is only now being introduced. ‘the traciny of title to father, : grendfather and beyond even by hearsay evidence, whcih is pornissible in such cases, nas been the only proof of title to such lands even some so in the Provinces and the 2ural areas. fwo eriticicisms levied a ainst the appellant are that firstly " he did not Jefine tie voundary of his lend, Sut quite apart from exhibit a wnich thou€h it may not per se be proof of title yet it

4 id] | ied -7- \ 7 contains the pain of the land in dispute, paragraph 1 of the

statenent of claim was amended to further read, "Zhe said piece

and parcel of land is delineniind on Plan iG. 1823/77 attached hereto

ond forms part of this Statement of Claim". what more is required

. of the sppellant to define his boundary? Secondly, that in answer

40 erosc-exa ination, the appellant is recorded as Yaving told the

Court: "seeeeseee. I know nothing about the lund area in déspute,

ny surveyor should know". In my view what the appellant was saying

was that as a layman and frou the witness box he would not define :

the extent of lis land or area trespassed on; only his Surveyor

would know. But in cases of trespass to land is it always

necessary to have a plen? If a man trespasses in a room he has done

so in the nane of the whole premises without producing a plan of

either the premises or the room or narrower still the area trespassed

One

In ny view the evidence before the leirned trial judge was

ple proof of the plaintiff's title to the land dekineated on plan

4.3. 1825/77 and of the respondent's trespass thereon to entatle

appellant to a declaration of title as apuiust the respondent and

gud_sent for trespass. and I so hold.

I would set aside the judgment ofMkm the court below and enter * one for the aypellants

On the question of the rliefs sought by the appeilant

41) I declare that the plaintiff/appellant is the fee sample owner of the lnnd at 2obis, the subject matter of this acbion and . which is Geseribed in Pla wis. 1823/77.

(2) Yhe appellant is entitlea to an is granted re-possession of the said land,

(3) An ingunetion is ordered restraining te respondent, his servant ox ujent or anybody claimimy through him from entrying the suid lind and comitting further acts of trespass.

. (6 I ovevd the appellant Le1,..00 general dunages.

(5) Kense Profits. 2he appellant nas led no evidence on this and _ Toiwdke no aver.

. (G) I a ard the appellant costs in théscaurt and in the Court below,

wate ~8- none

on taxation.

: (Sed) S.T. Navo J.A. 1 agree Stet; utube (02) ss... gustice of appeal Certified Irue Copy y hoch fe LN Ast Ca Registrar, cburt of Appeal. :