Elizabeth Ahmed v Memuna Bah (CIV APP 50 of 2007) [2010] SLCA 28 (11 March 2010)

7 — eel, J ‘ ‘ wr 2 IN THE COURT OF APPEAL OF SIERRA LEONE (oq te CIV APP 50/2007 . SETWEEN ELIZABETH AHMED APPELLANTS - AND MEMUNA BAH (By her AttorneyAMADU BALLA KAMARA) - RESPONDENT

Coram

HON MR JUSTICE N ¢ BROWNE-MARKE, Justice of Appeal HON MR JUSTECE E E ROBERTS, Justice of Appeal HON MR JUSTICE S A ADEMOSU, Justice of Appeal, COUNSEL: : ND TEJAN-COLE esq for 1" Appellant : J.B JENKINS-JOHNSTON esq for Respondent

Judgment

1, This is an appeal brought by MRS ELIZABETH AHMED, as Appellant against the Judgment of the Honourable MRS JUSTICE A SHOWERS (hereafter Learned Trial Judge, LTJ) dated the 12" day of November, 2007. In the Notice of Appeal, the Relief sought by the. Appellant, is that this Court Sets Aside the Judgement of the High Court, granting Recovery of Possession to the Respondent herein, and that it Orders Specific Performance of the enforceable contract between the Appellant's predecessor-in-title, her deceased husband TSBIR AHMED who was 1" Defendant in the Court below, and the 5" Defendant in the Court below, Herbert Thorpe. For reasons of clarity, T shall hereafter refer to MRS AHMED as Appellant; MADAM MEMUNATU BAH, as Respondent, and the other parties in the Court helow, to the number assigned to each of them in those proceedings. % Since the Appellant only became a party in those proceedings after the demise of her husband, ISBIR AHMED, who was the 1*" Defendant, the ee ee ee

deceased shall be referred to as such in this Judgment. The 2" to 6" (lo Es Defendants inclusive, did not appeal against the said Judgment.

2, The Grounds of Appeal are that the LTJ erred when she granted possession of the property situate at, and known as 3 Clarke Street, Tengbeh Town, Freetown, to the Respondent, notwithstanding that she had found, firstly, that the Respondent was not a bona fide purchaser of ~

* the legal estate for good consideration; secondly, that the Respondent qua purchaser, did not take reasonable care expected of a prudent purchaser to make the necessary enquiries before payment of the purchase price, and consequently had constructive notice of any encumbrances; thirdly, that the Respondent held the property subject to the equitable interest of the 1* Defendant, and subsequently, by succession, the Appellant; and fourthly, that she was not in possession,

3. The Appellant contends also, that the decision of the trial Court ought to have been based on the evidence adduced before it, and that on the facts found by the LTJ, the Respondent's case ought to have been dismissed by the LTJ. Further, that the LTJ misdirected herself in that she did not treat the Counter Claim of the Appellant as a separate and independent cause of action, as should have been the case, notwithstanding that its subject matter was the same as that in the Statement of Claim. It follows that once she had held that the contract between the Appellant and the 5" Defendant at the trial, was specifically enforceable, she ‘ought to have granted Appellant's prayer for Specific Performance.

4, The Appellant contends further, that the award of Le5Omillion as Damages made in her favour, which said sum of money was to be paid to her, by the 5" and 6™ Defendants in Lieu of Specific Performance, was made Per Incuriam, and was a wrongful exercise of the Court's Discretion; nd lastly, that the Judgment of the Court was against the weight of the

Evidence

5. On 21 November,2008 the Appellant filed Additional Grounds of Appeal to the effect that, firstly, that the LTJ injudiciously exercised her discretion in favour of the Respondent regarding the Appellant's Counter Claim, She refers in particular to Page 199 Line 25 of the Record, and

avers that there was no need for such an exercise, and that it had

resulted in a miscarriage of justice. Finally, she contends that therissue of Hardship was never canvassed by either party, and that the LTS is eee s

‘ought to have allowed Counsel the opportunity to address her on this (tt issue.

6, The appeal first came up for hearing on 21 October,2008 when we Ordered the filing of synopses, by Counsel on both sides, The Appellant was to file hers against 13 November 2008; and the Respondent, against 21 November, 2008, Further oral arguments were fixed for 28

. November, 2008, In the event, the Appellant filed her synopsis, together with the authorities cited therein, on 13 November,2008; and the Respondent, only on'28 January,2009. Brief additional arguments were heard on 29 January,2009 when Judgment was reserved,

7. Rule 9(1) of this Court's Rules,1985 states that “all appeals shall be by way of rehearing... "Rule 31 states that this Court “... shall have as full Jurisdiction over the whole proceedings as if the proceedings kad been instituted and prosecuted in the Court as a Court of first instance, and may REHEAR the whole case....” This being the mandate of this Court, I shall dwell a bit on the facts of the case as presented in the High Court. T shall also bear in mind that the actual Trial Judge, RASCHID,J died before Judgment, and that with the concurrence of Counsel on both sides, SHOWERS,J was authorised to give Judgment on the basis of

evidence led before her deceased brother, She thus had no opportunity to see and hear the witnesses who testified on both sides.

Pleadings and Preliminary Proceedings

8. The facts of the case, are as set in the Respondent's Statement of Claim,

‘as amended, and her Defence to the Defendants’ Defence and Counter Claim; and in the 1* Defendant's Defence and Counter Claim, and Reply to the Respondent's Defence to Counter Claim. The specially indorsed Writ of Summons was issued by the Respondent on 26 November.1996. In it, she claimed, inter alia, for the recovery of immediate possession of the house, land and premises situate at and known as 3 Clarke Street, Tengbeh Town, Freetown. The action was brought on her behalf by her ‘Attorney, AMADU BALA KAMARA, who was appointed as such by virtue of a Power of Attorney dated 2 November, 1996 and duly registered os

No. 205 at page 98 in volume 65 of the Record Books of Powers of

Attorney kept in the office of the Registrar-General, Freetown

x According to the Respondent's pleading, she became entitled to the fee simple estate, and to possession of this property by virtue of a Deed of

Conveyence dated 10 October,1996 made between herself as Purchaser | | . ond the 5" Defendant, HERBERT THORPE. She paid the sum of Le32m ‘ for the property, then approximately equivalent to USD35,000, By letter 7 dated 18 October 1996, she as the new owner of the premises, gave notice to quit the property, in writing, to the deceased 1" Defendant, TSBIR AHMED, and fo the other Defendants, who were residing there, 4 The 1 Defendant, and the other Defendants for the reasons later sd stated in their joint Defence, did not give vacant possession to the Respondent, within the 7 day period stipulated by her. The Respondent also claimed mesne profits at the rate of USD8,000 per annum with effect from 25 October,1996 the date the Notice expired, until delivery up of possession,

9. Appearance was entered for the 3" Defendant separately, by the late EDWARD AKAR Esq. Appearance for the other Defendants was entered by ND TEJAN-COLE Esq, who also appealed, and argued this appeal, on behalf of the Appellant. On 13 December,1996 the late EDWARD AKAR Esq filed a Defence on behalf of the 3 Defendant, PASTOR MOMODU CONTEH. In that pleading, the 3" Defendant denied all knowledge of the sale of the property to the Respondent. He averred that he only got to know about the sale when he received the letter dated 18 October,1996 from Respondent's Solicitor. He had been paying rent to the late 1" Defendant whom he acknowledged as the owner of the property, and he was not in arrears of his rent. 10.8y nap Science and Counter Claim, dated 18 December,1996, the then 1" pln Defendant, IS8IR AHMED, and the 2% and 4" Defendants, brought action, not only against the Respondent, but also her Vendor, HERBERT AKINOLA OLADIMAGE THORPE (hereafter HERBERT THORPE), In their Defence, the late 1", and the 2 and 4" Defendants, averred as follows: that they were tenants of HERBERT THORPE up to 17 Tune,1995 when the late 1" Defendent paid the final instalment of the purchase price for the property at 3 Clarke Street, to HERBERT THORPE, and that by accepting such payment, HERBERT THORPE became a Trustee of the property for and on behalf of the said 1" 2" and 4" Defendants; that on dates prior to the date conveyance of the property was executed in her favour, Respondent was aware that the late I 7 Defendant had become the owner of the property. These Defendants admitted receiving the letter dated 18 October,1996, and that as a result

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