Dumbuya Fallah v Moseray Kamara (CIV APP 73 of 1981) [1984] SLCA 2 (19 January 1984)

% «Olive App. 73/81 DIANE COURD OF APPEAL FOR STERRA LEONE + conatt: tes = HON. MR JUSTICE S.C.E. WARNC = TAL - 7 ¥ HON. HR JUSTICE 8.2. KAVO a. a HON. MR JUSPICE S.tl?. KUTUBU © - J.A. BETWEEN: ~ DUMBUYA FALLAH - APPELLANT rd - AND ¥ NOSERAY KAMARA - RESPONDENT c¥ . DR. Watts JOKO-SHARE FoR APPEDZAMIE ¥ RIAN H. SAVAGE BS. FOR RESPONDENE = ‘ZUDGMENT DELIVERED THE 20TH DAY OF JANUARY 1984 # EAVO, JA. : This appeal arises from the judgment of Thompson-Davis, J 7 (as he then’ was) delivered on the 10th June 1981. T have had the advantage of roading in print the judgaent that has Just Yoon delivered by my Leamed brother Ware, JeA. and it ig with rogret that I have to disagree with his conclusion, and I do £0 . with utmost respect. ‘he appellant's grounds of appeal are set ; out in the judgnent of Warne, J.A. I therefore do not find it necessary to repeat them herein. j I however find it expedient to set out in full the plaintifr/ } appellant's amended statement of claim and the defendant's defence filed. { “AMENDED STATIN OF CLATH: "4, ‘The Plaintifr at all times material to this action was { and still is joint foo oimple omer in ponnennion of all . that piece or parcel of land situate lying and known a Robis near Galaba Town in the Western Area of Sierra Leone | having inhorited same jointly with his younger “brother " Homboli Fallah from their father the late Ansumana Kompa | Es of tho said land. he said piece or pureed of land ig { inane j

$ at

: oe 2 delineated on Plan 1.8. 1823/77 attached heretovand forms part of this Statement of Claim, oy

: 3: m fod

2. "Sometime in 1972 the Defendant wrongfully and ufllawfully " entered and has since persisted in entering mis tre |

Plaintiff's Lond aforesaid and clained 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 Plaintisty:

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, "Bho Defendant still persists in the acts of trespass.

5. MMe Plaintiff, therefore, clains:- Dp

(4) Declaration that al1 tit piece or parcel of and

situate lying and known as Robis, Calaba Bom in Wester Area of Sierra Leone now occupied by the Defendant and portions whereof the Defendant has unlawfully sold is the property of the Plaintirr."

(44) Recovery of possession of the said land, jj :

(4i) am injunction restraining the Defendant hig"servant or agent from interferring with the said land.

(iv) Damages for trespass.

(w) HMesne Profits. i (vi) Any further or other relief that may be just." , spepiaice® 1. the Defendant denies paragraph 1 of the Plaintitt's Statement of Claim. i

2. In anwer to paragrapho 2 and 4 the Defendant denies the " allegation herein.” neo Se

oa an as &. t r Pen Sepoweca Meee! fe Statement of Claim. :3 . "4, The Defendant again denies paragraph 5 of the Plaintiff's ie * Statenent of Clin, i H "5, Gave am herein before expressly admitted the Defendant speciticully denies each and every of the othengedegations Tt is therefore quite clear fron the pleadings that the{Defendant ettored n6 Aafeine te wid the avvonmita in "the stetengetor stata other than a general denial of every statement of fac, Hathout setting then out and denying then specifically as is Fequired : by the rules of pleadings. ven the Plaintiff's Clafm for relief is denied. Evy : ‘he case went to trial on the above pleadings» The plaintiff/appellant called three witnesses (including himself) in oupport of his claim, In his evidence the plaintiff deposed tiiat he was now over sixty years of ago and vas born 6. phe lend mow as Robie in respect of which he instituted thig setion and over since Lived on it. He deposed that he and his brother : Bockarie Boabo! Pallah, inherited it fron their fathen Salami, Kompa who died about forty years ago. itis father alsofinheritea 4% from hia (the sppelient's) grenétather one Koaye Bealls. 2 favonphont thie pended be bad Leek om his Aad. gipdigt. tam he got 112 in 1972 and went anay and retumed later. Zt is not in evidence the exact date he returned, but when he aid” 80, he 7 his land. He reported the matter to one Homoh Kargbo, ileadman told the headmon that the land was given to him by one Foday of : seeee/ be '

hag om 4b Wellington. The headman asked that Foday be brought to his but neither Foday, nor his wife, nor his son vere brought by the respondent. The Hesdman 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. appellant instituted action against hin in the High Court in 1976.

While this case was in court appellant and his brother Bockurie Fallah prepared a Statutory Declaration for the land. one Allie Conteh and one Alinany Conteh witnessed the document testifying to the truth of the contents. The document was put in evidence (unchallenged) as exhibit "A". “Ss

Bockarie Bomboli ¥allah the brother of the appellant also gave evidence corroborating that of the appellant and added tho * appellant had his authobity to sue for the land. ij q

‘The, Headnan of Calaba Town, Monoh Kargbo next gave evidence. In his evidence he said,that he knew the lend in dispute and : that it belonged to appellant. That in 1978 the appellant complained to him that respondent had gone into his lend. the headuan said that he hinself vent to Calaba Town in 1934 about (50 years ago) and found respondent on the land. The Headnan said: ‘

"L told Moseray that the land was owned by plaintitt ana

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

He refused to leave, plaintiff cane back and complained.

I then advised him to go to court. :

Plaintiff then took defendant to the C.1.D. to get hin

to leave" 421 throughout the trial respondent was represented by able

counsel whose cross~examination I would say, with respect, vas not directed to the issue before the court nor even suggentive that the Land belonged to respondent or that he did not trespass ‘ or built on the Land as alleged. ile Gave no evidance nor cal ied ny witness. Not even Foday the alleged vendor to him was

catted to Elve evidence or made pasty to the acts |

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