Faiad v Faiad v Attorney General v Minister of Justice (SC 6 of 2009) [2010] SLSC 7 (19 October 2010)

SC. 6/2009 m TH E S U PR E M E COXJHT OF SIERRA LEONE IN THE MATTER OF THE CONSTITUTION OF SIERRA LEONE, 1991 ACT NO. 6 OF 1991, SECTION 21, 28, 122 & 124 (1» (A) IN THE MATTER OF ACTION PURSUANT TO THE SUPREME COURT RULES 1982 PART XVI RULES 89 - 98 OF STATUTORY INSTRUMENT NO. 1 OF

MOHAMED GHAZI R. FAIAD DITNXA FAIAD (SUING BY THEIR ATTORNEY BALA S. AMARAKSEKARAN) NO. 4 SMART FARM OFF WILKINSON ROAD FREETOWN 1st PLAINTIFF 2nd PLAINTIFF ATTORNEY-GENERAL & MINISTER OF JUSTICE GUMA BUILDING LAMINA SANKOH STREET FREETOWN - 1st DEFENDANT THE BANK OF SIERRA LEONE SIAKA STEVENS STREET FREETOWN 2n d DEFENDANT C O B .4 H : THE HON. MRS. JUSTICE S. BASH-TAQI - J.S.C. THE HON. MRS. JUSTICE V.A.D. WRIGHT - J.S.C. THE HON. MR. JUSTICE M.E.T. THOMPSON - J.S.C. THE HON. MR. JUSTICE G.B. SEMEGA-JANNEH - J.S.C. THE HON. MR. JUSTICE E.E. ROBERTS — J.A.

YADA WILLIAMS ESQ. AND OSMAN JALLOH ESQ. FOR THE PLAINTIFFS OSMAN KANU FOR THE 1S T DEFEN ANT PATRICK LAMBERT JPRQ THE 2W D DEFENDANT JUDGEMENT DELIVERED ON THE p * DAY OF EMEGA-JANNEH - J.S.C.

The facts are brief and the basic facts are undisputed. By a series of conveyances commencing with the conveyance (Exhibit B) dated the 29th April 196.1 between the representatives of Toke village on the Sierra Leone Peninsular Circular Road of the one part and Cornelius Augustine Harding of 64 Wellington Street, Freetown, of the other part the suit land was finally conveyed (Exhibit A) in 1997 to the Plaintiffs, Ghazi Faiad and Mrs. Dunia Faiad by Shakib Najib Khalil Basma by his Attorney Jamel Kamel Nimer Wanza and others. Adjacent to the suit land is property owned by the 2n d Defendant who also purchased same from Mr. Cornelius Harding. By a letter dated the 12th January 2007 (Exhibit L), the 2n d Defendant was informed of the Minister of lands and Country Planning’s approval of the allocation of the suit land, described; as state land, to the 2n d Defendant. The Plaintiffs and their predecessors in title have been in possession of the suit land for several years and in the mid 1980s up to 1998 had developed the suit land, built chalets and )perated the premises as a hotel, under the names of AFRICANA TOKE V il l a g e and t o k e v il l a s h o t e l. The 2n d Defendants have now embarked upon fencing of the suit land along its perimeter except the dividing line separating the suit land from the land owned by the 2,ld l Defendant and thus incorporating the suit land and the other land Within one fenced area. The Plaintiffs were alarmed by this development and after a series of correspondence, the Plaintiffs commenced action in the High

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Court. This was subsequently abandoned and the Plaintiffs brought this action under this Court’s original jurisdiction claiming, the following: A s A declaration that the Plaintiffs are the fee simple owners free from all incumbrances o f all that piece o f or parcel o f land situate lying and being at the O ff Peninsula Circular Road, Tokeh village Freetown, in the Western Area o f the Republic o f Sierra leon e as shown on the survey plan with L.S. no: 722/96 by virtue o f a conveyance dated 28th Febmary 1997 and made between Sha.kib N.K. Basma, Rached R. Faiad & M. Ghazi R. Faiad as vendors o f the one part and Mohamed Ghazi Faiad & Dunia Faiad, the Plaintiffs herein, as purchasers o f the other part covering an area o f approximately 2.4744 acre and Registered as no. 348 at page 74 in volume 618 in the Record Book o f Conveyances kept in the Office of the Registrar-General, Freetown, save fo r any restrictions referred to in the conveyance aforesaid. That the 2n d Defendant, installed by the Minister o f lands, Housing and the Environment and the Director o f Surveys and lands o f the Republic o f Sierra Leone on the said piece or parcel o f land, be ordered by this Honourable Court to vacate the said land and deliver up possession to the Plaintiffs. That the Honourable Court do award the Plaintiffs damages to be paid by the 2n d Defendant fo r the contravention o f the Plaintiffs rights provided for in section 21 o f the Constitution. That the Honourable Court grants a perpetual injunction restraining the Defendants, jointly and severally, by themselves their servants, agents, privies or howsoever or otherwise from selling, leasing, mortgaging, entering, remaining parting, with possession and/or in any way whatsoever from disposing or interfering with said piece or parcel of land or any part thereof

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E. Any further or other relief that this Honourable Court may deem fit ancl just y That the costs o f and/or incidental to this application be borne by the 2n d Defendant. I j The PUujji tiffs filed a Statement of Case. The 2n d Defendant filed a Statement of j * Case. The 1s t Defendant failed to file a Statement of Case and at the hearing failed to offer any evidence or argument. By virtue of rule 92(1) of the Supreme Court Rules, 1982, and the conduct of the 1s t Defendant, I conclude that the l a t Defendant clearly did not wish and had not contested the case. On the other hand the 2n d Defendant vigorously contested the case and, therefore, it would bd prudent in the circumstances of the case, to deal with the case as a f ] - . 'whole.

The defence of the 2n d Defendant primarily rested on two pillars: (1) that the ■ ’suit land! was at all times state land and (2) that the Plaintiffs and some of their predecessors were not Sierra Leoneans. Let me firstly deal quickly with the first pillar as 1 recognize the thrust and emphasis of the 2n d Defendant is on the second pillar with its foundation being rested on statutes. Mr. P. Lambert, of counsel, for the 2n d Defendant, quoted extensively the judgement of the Supreme Court dated the 16th March 2007 delivered by Justice Rjenner-Thomas, Chief Justice - (as he then was) in the matter between . j - ■ Sorie Tarawalli and Sone Koroma (as administrator of the estate of Sorie Mansaray) S.C. Civ. App No, 7/2004 (unreported) at pages 7 and 8 before he submitted that the primary vendors (the villagers of Toke by their representatives) had no title in and to the land which they purported to convey (.Exhibit B to the affidavit of Bala S. Amara Sekaran dated the 11th May 2009) to Cornelius Augustine Harding (subsequently a Justice of the Supreme Court) and further submitted that the concept of “Community land” is not recognized I " ' * . J ■ ■ by law in the Western Area and therefore no titled passed. The quotation is extensive but due to its significance I repeat it in full hereunder:

q s “In this regard, a distinction should be made between a documentary or paper title and a possessory title. In the Western Area o f Siena Leone, which used to be Crown Colony before combining with the Protectorate o f Sierra Leone to become the unitary state o f Sierra Leone at independence in 1961, in theory at least, the absolute or paramount title to all land was vested, in the Crown (in the same way as in England, the largest estate a person deriving title from the Crown can hold being the fee simple) After independence such absolute title was deemed vested in the State as the successor in title o f the Crown. According to the State (formerly Crown) Lands Actt No. 19 o f 1960 (sic 1961)4 all grants of such title made by the Crown and later the State were said to be made in fee simple (see section 2 o f the State lands Act, No. 19 o f I960). Thus declaration o f title in favour of a Plaintiff without more is a short hand fo r saying that the plaintiff is seised o f the said land in fee simple. For a person relying on a paper title he must be able to track his title to some grant by the Crown or the State. This is how IJVESEY LUKE puts it in Seymour Wilson’s case (supra). "But in a case fo r a declaration o f title the Plaintiff must succeed by the strength o f his title. He must prove a valid title to land. So if he claims a fee simple title ne must prove it to entitle him to a declaration o f title. The mere production in evidence o f a conveyance in fee is not proof o f a fee simple title. The document mau be worthless . As a general rule the Plaintiff must ao further and prove that his predecessor in title has title to pass to him. And of course if there is evidence that the title to the same lands vest in some person other than the vendor o f the Plaintiff the Plaintiff would have failed to discharge the burden upon him” (emphasis provided by Mr. Lambert of counsel)

Thb quotation, within the quotation, attributed to Livesey Luke, in my humble view, does not state that a person relying on a paper title must be able to trace his title to some., grant by the Crown or the State, In my view all that the learned Justice Livesey Luke is saying in the quotation is that a person claiming for a declaration of title must prove a valid title on the strength of his : title and that a mere production of a conveyance in fee is not proof of a fee simple title and the person may need to show that his predecessor in title has title to pass. For instance notwithstanding the strength of the person’s title, if there is evidence that the lands in question vest in some other person (even if not a party to the suit) other than the vendor of the claiming party (the plaintiff)j! the claiming party would have failed to discharge the burden upon him. The historical background given by the learned Chief Justice may well be correct and must have given rise to the conclusion that a person relying on a paper title must be able to trace his title to some grant by the Crown or the State. But the statement even if correct appears to be so only in theory, andj ; not in practice, particular in areas outside Freetown in the Western Area. •Support for this is found in the judgement dated the 17th June 1981 delivered by Livesey Luke, C.J, in the case of Seymour Wilson Vs. Musa Abess Sc. App. M=No. 5/79 at P78 of the Book of Judgements where he stated: N . fe ^ g , "Quite apart from this, it is a matter of common knowledge that title o f the lands in the Western Area outside the city o f Freetown are based on possessory title and most o f them are not supported by title deeds. That situation is the result o f the history o f land, holding established in the Western Area about several centuries ago. The system which has been in operation in the Western Area since the founding o f the colony (now the Western Area) is that land passes within the same family from one generation to the other in many cases without the existence o f any document o f title. The question then arises: Does the mere registration o f a deed conveying any

such land confer title on a purchaser as against the true owner who may have an indefeasible title but no document o f title”? From the subsequent discourse the learned Livesey Luke C.J. gave a resounding no as the answer. The view of the learned Livesey Luke C.J. find support in the colonial policy of “In d ire ct R u le ”. This was a device by which the British ruled their colonies by allowing and generally leaving intact the ! if. k institutions, customs and practices of the subject people except where they view such jas being well beyond the pale of civilisation or threatening the order, paramount interest or supremacy of British rule. The objective was to make administration easier and less likelihood of revolt from the subject peoples; the policy was expected to reflect business as usual. In the .mplementation of this policy it was not necessary for the British to take over or physically take all the land fromj the subject peoples. Land was taken over in a possessory sense when it was really required by the crown and hence the development of the policy/practice of compensation and compulsory acquisition or purchase. The historical background s some what different. The Norman conquest of England in a sense resulted in immigration, occupation and seizure of the conquered lands for the invaders, particularly for the leaders and generals - not unlike the Dutch invasions of South Africa. Coming back to the situation at hand, the Plaintiffs title is traced through a chain -of conveyances (about four (4) in number) spanning from the 29th April 11961 (Exhibit B) to the 28th February 1997 (Exhibit A). The Plaintiffs had several predecessors in title and have been in possession in excess of forty years. During the period the land was completely developed with structures and chalet? and the premises for a considerable period of time was operated as a hotel, paying outgoings, rates and taxes without let or hindrance by the

Government or by any one until the advent of the 2n d Defendant in the scene. Prior to the conveyance of the suit land to Cornelius Augustine Harding, the suit land was in the possession of the villagers of Toke in the Western Region. It is a historical fact that such lands were, and continued, in the possession of the villagers and used by village family units or village individuals or

communally for residence, farming, commerce, etc. It is irrelevant for the discourse on possession or ownership whether the suit land is labeled “com m unity land " In my view it is the historical realities that matter. I am •;% -therefore of the considered opinion that the villagers of Toke by their representatives had title which they properly passed onto Hon. Mr. Justice Cornelius Augustine Harding. The foundation to the second pillar rest on statutes, primarily the Non-citizens (Interest? in land) Act, 1966. In the 2n d Defendant’s Statement of Case, Mr. Lambert submitted that Muhamed Ghazi R Faiad (the 1s t Plaintiff), Rached R. i . Faiad, Feisa.1 R. Faiad and Imad Faiad could not own freehold land in the Western Area of Sierra Leone by virtue of the provisions of the Non-citizens (Interests in land) Act, No. 30 of 1966 contrary to section 3 which provides: "3 No.-non-citizen shall purchase or receive in exchange or as a gift ‘ any reserved freehold land is the Western Area " Non-citizen is defined by section 2 "as (a) any individual who is not a citizen of Sierra Leone” - • f j • Mr. Lambert argued that Mohamed Ghazi R. Faiad and Rached R. Faiad were not citizens of Sierra Leone at the material time that the Deed of Conveyance , (Exhibit SM 9 dated 8th December 1987 to the affidavit of Sullay Mannah sworn to on the! 4th June 2009) was executed by the Hon. Justice Cornelius Harding He further argued that Feisal R. Faiad and Imad Faiad are st 1 not citizens of Sierra Leone because there is no record with the government officer (the Chief Immigration Officer) responsible for keeping such records that the}' were ever issued with naturalization certificates as required by the Citizenship Act No. 4 of' 1973 as amended. During the hearing on the 14th December 2009, Mr. Lambert withdrew his challenge to the validity of the naturalization certificate (he was now confronted) issued on the 26th day of October 1973 and exhibited as “M” to* the affidavit o f Bala S. Amarasekaran sworn to on the 22n d October 2009, Mr. Lambert withdraw the challenge giving three reasons.

1. He had regard to the provisions of section 23 of the Sierra Leone Citizenship Act, 1973, which provides: T "23 the Minister shall not be required to assign any reason fo r the grant or refusal o f any application under this Act, and the decision of the Minister on any such application or on any other matter under this Act shall not be challenged in any Court"

2. He had no proof that the document is not genuine,

3. Finally, he had to, given the decision of the Supreme Court in the Case of THE STATE VS. ALGHASSIM JAH S.C MISC. APPLIC. 1/94 in which the Court held that the courts were barred or forbidden from any excursion in any form whatsoever for the purpose of examining the decisions of courts - martial by section 29 of the REPUBLIC OF SIERRA MILITARY FORCES (AMENDMENT) ACT, 1971, which provides:

“29 the decisions o f a court - martial shall not be questioned in any court of law” For some unstated reason Mr. Lambert did net proceed with argument in I : respect of Rached R. Faiad and Feisal R. Faiad. Rached R. Faiad has a naturalization certificate issued on the 3rd October 1985 and exhibited as “R” to -he affidavit of Bala S. Amaraseraran sworned to on the 22n d October 2009. As regards Feisal R. Faiad a copy of his Sierra Leone passport is exhibited as "Q" to the said affidavit of Bala S. Amarasekarian. I take it that Mr. Lambert was satisfied that they are of Sierra Leonean nationality and therefore dropped the challenge; to their nationality that he initially raised. In respect of Imad R. Faiad Mr. Lambert vigorously presented his argument.

Mr, Lambert submitted that on the evidence Mr. Issam Raiad is not a citizen of . Sierra Leone. He argued that by virtue o f section 3 and section 5 (1) of the Non citizens (Interests in Land) Act, 1966, any conveyance in favour of a non -citizen whether dlone or together with others, whether citizens or otherwise, shall vest such lands on the Board for the whole estate or interest conferred. The Board is defined under section 2 as “consisting of the Ministers responsible for Trade and Industry, Lands, Finance, and Development and the Attorney-General, of which the Minister of Lands shall be the Chairman”, He further argued that the vesting of the lands in question on the Board is automatic. The result, heI i further argued, is that Mohamed Ghazi R. Raiad, Feisal Raiad, Rached G. Raiad an# Imad R. Raiad had no title in the land (the suit land) that they . conveyed to Shakib N.K. Basma, Rached R. Faiad and Muhamed Ghazi R. ‘Raiad by the conveyance dated the 8th December 1988 and exhibited to the affidavit of Sullay Mannah sworned to on the 4th' June 2009 as “SM10” and, therefore,;passed no title to the purchasers and they in turn passed no title to