Edmund Davies & Mcneil Brown [1924] SLCA 4 (1 December 1924)

139 DAVIES - Appellant . 11. McNEIL S.U!UEL BROWN - - Respondent. Action for rrt'OL'f't•t oj po.<.<r.<.<ion nf land. The facts of this case arc sufficiwtly set out in tl1e judgments. Appeal from a judgment of Purcell, C' .• T.. in the Supreme Court of the Colony of Sierra Leone. Barlatt, R. ll cbron and Ladi pon Thomas for Appella nt . .t1.. J. Shorunkeh-Sawycrr and Nelson Williams for the Respondent. lJarlatt for the Appellant cites:- 4 and 5 \ict ., 0h. 20. sN'. 12. In re Williams Davies r. Willinms. L.R., 34 Ch. D., p. 558. In re Bonsor 't'. Smith'c: Contract, L .R., 34 Ch. D., p. 560 (~otc) . In re Scott"-'· .\h·arC'z Contract (1895), 1 Ch. D., p. 596, sees. 12 nnd J !'I of Real Property Limitation Act, 18!33. Solling v. Brou~hton (1893), .\.C., p. 556. Sawyerr for the Respondent cites:- Evans r . )!erthF T~·dvil U.D.C. (1899), 1 Ch., p. 241. Roscoe ::Yisi Prius, 18th Ed .. pp . 45 and 66. Rules of Supreme Court, Ordt>r 22, rule 21. J,ord St. T,C'on:mls t·. \shhurner (1869), 2 L .T.R., p. 595. Curzon 1J. I,omax. I) East., p. 60. Spargo v. Brown, !) B. :uv1 C .. p. 935. Nelson W1'lliams for the Respondent cites:­ Odgers on Pie ding-, 8tl1 Ed., p. 230. Intestate Estates Orclinnnce, 1887' (No. 8 of 1887).1 sec­ tion 11. Carson Real PropertY Statut<'s, 11th Ed., pp. 167, 22G. C'arter v. Barnard, 17' J,.J. Ch., p. 278. Barlatt in reply cites:- Odgers' Common Law, p. 440. White Book, Order ')8, rule 12. White Book, Order 58, rule 4. 1 Now Cap. 104 ~>~c. 11. Vol, I, fl· i29. 1•' December 192-1. Du!l:S t/. liROW N. 140 BUTLER-LLOYD, .T. In thi~ case I find my~elf in the unusual position o£ being compelled to give judgment on grounds which were not argued by either side, thoug-h they arise directly and inevitably from the cleeds and plans which h:we been put in evidence . The whole case was argued on the assumption that Plaintiffs boundary on the Southern side was a line extending from a point on Mndmtkia CreE'k on thE' East, to n point on Waterloo Creek on the West, :mel the bulk of the e•idence related to certain irregularities in that line towards its Western end . The plans of Mr. Betts, Mr. Wilson and otlH'rs are all based on this assumption, which apparently bas for its basis the wording of the parceh and the plan in exhibit " • .\.." the original Crown Grant of 1886, wlwre the Routhern boundary is said to be and shown as a proposrd road ft·om poin1 " C " on Madonkia Creek to a point "A" on Waterloo Creek for a distance of 1 ,979 feet. This plan is a mere pen and ink sketch, and does not appear to have been the r~>~mlt of a proper survr:v, but its general outlines are very closely followed in e•ery subsequent plan in which the whole of old Pah L okkoh ro;tate is shown. Turn ing now to exhibi t " n," the deed of partition between Willi ams and Cole, it will he seen th1t, both in the body of the deed and in the sc·hedule, ihe Western boundary of Cole's portion is describE'd as con~;1sting in part onl~r of Wafflrloo Creek and in part of n piece of land wl1ich in th<> second ~chedule is calle d " F "and is so marked in the plan, which is otherwise a copy of the plan in exhibit" A." The existence of such ::t piece of l::tnd to the W est of Plnintiff's Western boundnry and between it and W aterloo Creek is amp!~· shown by the other plans produced, though in most of them this land is shown as being- his property, nnd in tl1is conn ection it is importnnt to remember that most, if not all, of these plans were mad<' ft·om information given by persons on tl1e spot and without reference to existing plans. If any further proof be nt-<'ded it is amply afforded hy the m<'nsurements in plan " G. 1." whi<'h ~l1ow n total lE>ngth of boundnry between the Centrnl and WE'o;tern pillar-; onlY of no leo;-. than 3,483 feet, or very nearly twic<' ihe length of Plaintiff's Southern boundary nrrording to both ihe parrels nnd ih<> plan in the ronveyance by Rongo Davies to l1im (exhibit "D " ). Turn ing to the next document in P laintiff's chain of title, th e conveynnce from the f'isters C'olr to lfr. Sonp:o Davies, the whole of the olcl Pnh T.okkoh estat<' i,:; dearly shown. the parcel!. being the same as in the s('rond c:;rhr lule to ('xhibit " B," with 141 the exception of the reference to the sttip of land " F," which is omitted. but that land is clearly show-n in the plan as constituting the whole of the Western boundal'y up to the point" E." Unfor­ tunately the dimensions, with the exception of the X orthern boundary, are 110t :-howu in the plan, and still more unfortunately the portion to he sold is not coloured as stated in the text of the deed, but no one l10king at it can doubt that the land intended to he conwyed by it wns the portion marked " Southern portion of Pah Lokkoh, 1 !3!3 acres." and boundccl on the West by the dottf'd line running somew-hnt Enst of South from point "E." The next document in Plaintiff's title is the conveya nce of Songo D:.wies to himself (e-xhibit "D "), which it should be noted was exf'cutecl within a few days of exhibit" C." It con­ tnins identical parcels and a plan which is obviously merely a copy of the central portion of the plan attached to exhibit "C," but with thi~ dilrcreure that the words " Southern portion of Pah Lok koh. 1:13 ncreR " ar!' omit ted, the dimensions are inserted and the whole area. on both side!' of the line running :hom point "E " in a ~outh-Easterly direction is coloured. Mr. Songo Davies explains the existence of this line in exhibit " C " as being a trace of the old right of way, but, as I k1ve already stated. il appears to ha>e been in fact the Western boundary of the land conveyed to him by exhibit "C," and therefore also of the lund con>eyed h~· him to Plaintiff by exhibit "D." If confirmation of this were require<! I would point out the obvious disparity in size between the two halves of old Pah Lokkoh, i:f this line be 11ot the boundary (see plnn in exhibit " C "), an d also that the Southern bonndm·y stated to be 1,979 feet is enormously longer than the Xorthern one, stated to he 2.800 feet; and the impossibility of a boundar~' only 1,979 feet in length, reaching from ::lladonkia C'rt'ek to Water loo Creek, has already been shown h~, reference to plan "G. 1 " above. It therefore is ,,bundantly clear from these documents, all of which. except exhibit "G. 1," were produced by Plaintiff him­ .:;elf, that he is not the owner of the portion of the land coloure d red on exhibit " J) " to t11e West of the internal dotted line and adjoining the ~ite of the alleged encroachment and trespasses, and that therefore this action fails. T am fortunately not called upon to decide to whom that piece of l::tnd does belong, but from the wording of the Crown Grant to Rrigars Williams of the 400 acres in 1889 "land ..... being on tl1e South and West of and adjoining to " the land disposed of by the Crown Grant of 1886, it would certainly seem to me that this land may well come within the " 100 •tc•reR more or l~>ss " granted to Williams, and 10 DAV!JSS v. BROWN . JlCTLt:lt Lt.OY l'. J. DAVIEI! v. BRoWN. BUTLER LLOYD, J. 142 I have an idea that the reason that little attention has been paid to this part of th e land may be found in the word " mangrove " alongside the We~tern boundary of old Pah Lokkoh in the plan attached to lhe first Cro"·n Grnnt (exhibit "A"). If much of this land is in fact mangrove swamp it would account for neithe r party Laving taken much interest in it until it became valuab le by reason of some kola trees having been planted on i t . :Further, l am not called upon to decide the validity or other­ wise of the title conveyed by the }1isscs Cole to Songo Davies by the Conveyanre of 1914 (exhibit " C "). Ijastly. I feel bound to point out bow regrettable it is that the parties have been led into tltis expensi\·e litigation as a result of inadequate ~'tll n:ying and planning, for if either the Crown Grant of 1886 or that of 188!) had been proper ly surveyed it seems to me almost certain that this dispute would never have arisen . No 1 ess than four surveyors have been on the land since, but always with inadequate information, though even so it is hard to underl'tand l10w they faile<l to discover the inconsiste ncy of tlte claim put for"ard by tl1e Plaintiff in this action with tl1e documents of title he held, partit'ularly as to the length of his Southern boundary. I "ill go further and say that I think it still more extraordinary that the parties themselves and their respedive lawyerR. who must haH' ltacl ample opportunity of examinin~ the- !locuments on both si(le<;, did not discover it in time to save the trouble and expcn11e of two long hearings before the Supreme- Court and this Court. For the reasons given thiR appeal will h-. di~r.,~ssed, and in the rirrum11tances no order will be made as to costs. :llcDO~NELL, .Acting C.J. I concur, and I wish only to add that it is inexplicable to me how. not only the Yarious surveyors, but also counsel on either sicle. htwe failed to ~eP . or to draw attention to, what became apparent to my learned brothers and myself as soon as we studied the various plans. The parcels. and the plan in exhibit " B," the partitio n deed, show clearly that at the West of the Western and Southern boundary of the land which is 1,979 f('et in length, there is a plot marked " F," the cur>ing Eastern boundary of which appears in most of the ~ucceeding plans. Yet the matter in dispute clearly refers to plot "F," and this, too, in spite of the £act that the assu.nption leads, as exhibit 143 "G. 1 " (Belts' plan o£ 25th .June, 1915) clearly shows, to the flagrant absurdity that a portion of the Southern boundary has been expanded from 1,9i9 to nearly 3,500 feet. For these reasons I agree tl1at each party must bear its own costs, both in this Court and the Court below. RA. WREV-C'OOKSOX, J. I entirely agree and have nothing to add but to express roy somewhat indignant surprise tl1at so much useless time and money should have been spent owing to the presuroecl failure to discover what should have been perfectly obvious to anyone-let alone surveyors and lawyers-taking the trouble to study the plans put in evidence. The learned Chief Justice as trial Judge, and we o£ this Court, were entitled to assume that such a mistake as has been made could not hnve been made; and I have to regret that such assumption was not justified. This is a very proper case in which the Court should make no order as to costs. lOA D"YTES t:. BHOWN. ~ICI)O NNJ!.LL, At'TISG l' J.